dete? Seis ALA es 


“ 

“F 

“i 
* 


: js 
CALA oh 


% 


- Soba etssZ net of eS Aaveteass 
(ile Ee nS ans os ptm, 


eee Sea > 








y ) 


4 
Pe 
Yop’ 
y 


rréin ia 


2 ete 


4 
if 
m 


eS 


a, prt 


2 mes 


Sites, 


te 5 %,) . y P 
tie 





fa 
t 


haat The ye SAN Ae 3 Pee an eae ae sna 
rit ' ant A Ea SP ales aD Se Pa « ee 


ety eh el 
Wee ms la vA 


: 


if 


i , t 
j hs, ha 
Yai ghh 





A PRACTICAL COMMENTARY 
ON THE CODE OF CANON LAW 





A PRACTICAL COMMENTARY 
ON THE CODE OF CANON LAW 


<n OF PR INGE > 
|, JAN Pe 1927. 

Sy 
Lea Ocicat sew 







BY 
Rev. Lyre ern O.F.M., LLB. 


WITH A PREFACE BY 


Rt. Rev. Msgr. PHILIP BERNARDINI, 8.T.D., J.U.D. 
Professor of Canon Law at the Catholic University, 
Washington, D. C. 


VouumeE II 


Second, Revised Edition 


New York 
JOSEPH F. WAGNER (Inc.) 
Lonpon: B. HERDER 
1926 


Ribil Sbstat: 


Fr. BENVENUTUS RYAN, O.F.M. 
Fr. THOMAS PLASSMANN, O.F.M. 


Imprimi Botest: 
Fr. MATHIAS FAUST, O.F.M. 


Minister Provinctahs 


Hribhil Obstat: 
ARTHUR J. SCANLAN, §8.T.D. 


Censor Librorum 
Imprimatur: 


+ PATRICK CARDINAL HAYES 
Archbishop of New York 


New York, SEPTEMBER 22, 1925 


Coryriaut, 1925, py JoserpH F. Waaner, New Yore 


PRINTED IN THE UNITED STATES OF AMERICA 


CONTENTS 


Tur THIRD Book 


1) LEE BIN Cara cn Senet AI oat hatayt ane 


PART TWO—Or Sacrep Puaces AND SEASONS . ...... it 
SUCTION I —--WR DACREDIELAGESH Why py) MING Lg) Hip ta nen tad, be, ot atau ak 
PPiplemee OT CDUPCheSt ye React Dts URSA A Le ae wN ccs hon gM RCO IKE oly) soe) 
Pit lemme wet OTALOTICS are hint nies eau ah ett Me ID baa DMT mau i 2s DED 
Title XI. Of Altars. . . AMA TS MAS Ae Taha LAUT TN MDL oe Me kee SUR O47 
Title XII. Of Ecclesiastical Biel CN OC EEN Aire CLAD TE Na tia R ch Moment ate, ple A aay 
Chapter I. Of Cemeteries. . 30 

Chapter II. Of the Transfer of the Body eB we Cnaren erat 
Services and Interment. . 35 

Chapter III. Of the Persons to whom Ecelenasticnt Burial is tio be 
Pranted Or Ueniedi erin ny eat ute Ra Nt ali aed, 
Section II—Or Sacrep Seasons . . . . . . . «sss 49 
Title XIII. Of Feast Days... 2 LD CLAN sae Atal era ate 8 
Title XIV. Of Abstinence and Fasting, . OC OY paisa NASR ORE Ore CRN 5 Ys 
PART THREE—Or Divine Worsuip . . ‘ Deon Aan OS. 
Title XV. Of the Custody and Cult of the Holy Puoharist: eae ter Wa Of 
Title XVI. Of the Cult of the Saints, Sacred cae anciRelics yeu 7h 
Title XVII. Of Sacred Processions . .. . Si Ree ea aoe et O 
A tleAey LL Oratred MLUTISNINGS hark meee Ne Won Me Wien es OU Le Pk 
ites ALS OrVvows and) Oaths, i cau ave NOE ON a le wih 8 
PRE DCET itl oh OLUVO WS cree elie it at (is ial Stan) oles Ay PNG a Ail Leth Oe 
CADET ELLE HOE OR UDSi) pete acid) Area NG ati BN eam e RC GSN Bat Oe 
PART FOUR—Or rue TEeacHING AUTHORITY OF THE CHURCH . . 96 
ithe XX. (Of the Preaching of the Divine: Words} wah an i ee Wek a 98 
Chapter ila Or Gatecheties i Inctrictiqn ht caulen Wei oe e shi Schuhe OO 
Chapter LiaOboacrea Lreachin gael ai, ent eu CARS AS leah LOZ 
Chanter: LLU Otmacred Missions, siti cine te nurs pec e ML olivaiy| vat LOG 
PLL Ley Xe Lee CCID TICS Orit har et cunt) oo pm Oe er Pein oie Wee Cus sein 
Title XXII. Of Schools... OTRO RES 1 SW § 
Title XXIII. Of the Censorship And the Brehbincn a Beales Sh pv Bren eo 
Chapter I’. Of-the Censorship of Books . .0 6 40%) soo... 121 
Chanter, lL OF the Prohibition: of Booksiin aig ndectemm ey ah se veal? 
itioun ATV. Ob the, Profession ofr aith ion Wipe sulteen te be eta deo 


Vv 


vi CONTENTS 


PAGE 

PART FIVE—Or BEnericres AND OTHER NoNn-CoLLEGIATE INSTITUTES 
OF THE CHURCH .... Sa ae tad he cys) he em aS aE LoD 
Title XXV. Of Ecclesiastical Boe Pete hu Mat inet iat LO 
Chapter I. Of the Constitution or Erection of Benenees Vans Lee 137 

Chapter II. Of the Union, Transfer, Division, Dismemberment, Gans 
version and Suppression of Benefices. . . . . . 140 
Chapter III. Of the Conferring of Beneficeés*7..7 5." . 127) 5 140 
Chapter IV. Of the Right of Patronage . . Sih ei te Te ek sy | 
Chapter V. Of the Rights and Duties of Peasants AO ea ee ee LOU) 
Chapter VI. Of Renunciation and Exchange of Benefices . . . . 162 
Title XXVI. Of Other Non-Collegiate Institutes of the Church . . . 163 
PART SIX—Or tur TemporaL Goops oF THE CHURCH . . . . 165 
Title XXVII. Of the Acquisition of Ecclesiastical Goods.. . . . . 166 
Title XXVIII. Of the Administration of Ecclesiastical Goods. . . . 178 
Title XXIX. Of Contracts . . OME DAR Mile 9 aklicop ys. obs nd fed 
Title XXX. Of Pious netndatione! SRE DL teste a ee TRS RL eS 

THE FourtH Book 

OF CANONICAL “TRIALS 2) 2). 2) 197 
PART. ONE—Or ORDINARY TRIALS: een eee ee enn LOG 
Section 1—Or Triats IN GENERAL . . .... .. . =. 199 
Title I. Of the Competent Forum . . va geen 199 
Title II. Of the Various Degrees and Stee of ebareley a eee 208 
Chapter I. Of the Ordinary Tribunal of the First Instance. . . . 204 
Article I. Ofthe Judge. . . EW Laer tha emai Lay eh on Ae bE 
Article II. Of Auditors and Reroress ae eas 206 
Article III. Of the Notary, Prosecutor, Dejoer Vance i ON Oey Anh DCTS 
Article IV. Of Couriers and Apparitors. . Mae, 200 
Chapter II. Of the Ordinary Tribunal of the Second Tneranes aoa 2200 
Chapter III. Of the Ordinary Tribunals of the Apostolic See . . . 210 
Article:I.* Of the Sacred Roman sRota\ 2) 22/149 eee 
Article 11> Of the :Signatura “A postolica 200) 2 a ee 
Chapter IV. Of the Delegated Tribunal . . eS oo OR aren eee oat 
Title III. Of the Rules to be Observed by the Garis SE SY a a cee 
Chapter I. Of the Office of the Judges and Court Officials . . . 215 
Chapter II. Of the Order of the Calendar. . EEE Dab 
Chapter III. Terms of Postponement and Fatalia Legit tes a 24 
Chapter IV. Of the Place and Time for Court Sessions. . 225 


Chapter V. Of the Persons to be Admitted to Court Sessions ana af 
the Manner of Drawing up and Preserving Judicial 


Actsr es) 4 oun LM PASE ah re Al aS a eee 
Title IV. Of the Parties to a Trial. Se 1 Veemeey way So: weiss 
Chapter I. Of the Plaintiff and the Defendant ol httiew oul Jit Sea aes 


Chapter II. Of Proxies in Litigations and Advocates. . . . . . 2381 


CONTENTS vii 


PAGE 
Title V. Of Actions and Exceptions . . 234 

Chapter I. Of the Sequestration of Goods And ‘te Tapmecon of the 
Exercise of Rights. . . 236 

Chapter II. Of Actions to Halt New Bn teentices ae re Obey 
Security Against Danger to One’s Property . .. . 237 
Chapter III. Of Actions Arising from the NulhivroteActsa ay © sx. 239 
Chapter IV. Of Rescissory Actions and the Restitutio in Integrum. . 241 
ChaptermuV. Ol;Actions and: Counter-Actions ts) e yo ie et 249 
Chapter VI. Of Possessory Actions or Remedies. . . . . . . 243 
Chapter VII. Of the Extinguishment of Actions. . . . . . . 246 
Nites aQi the Introduction olatCasey gene tou coe feat) Mila, bhi MORT 
Chapter I. Of the Bill of Complaint .. Ab aT § 
Chapter II. Of the Summons and the Nenned ine af J ain! ets . 253 
dt tlemy Lien OL the.Contestat.o. [itisn ) oo snare ulne ir cu eal bs A WR ORE 
Title VIII. Of the Instance of a Suit. . . Se a stmt Jere OC) 
Title IX. Of the Interrogation of the Parties in M @oart cite CM TL RLS 
Title 7X" Of Proofs’). ); AALS NS Ne ANS Lael oOo 
Chapter I. Of the Contesion fs res Partics Pea enee nH Ne Ss DOG 
Chapter II. Of Witnesses and Testimony. . . . . . . . . 267 
Article I. Persons who can be Witnesses. . . . . 269 
Article II. Introduction, Number and Exclusion of Winey a Cc ar pA 
Article III. Of the Oath Be WYTINCSSCS a anime uni Mee (hg A) gia ere 
Article IV. Of the Examination of Witnesses. . 274 

Article V. Of the Publication and the Rejection of ihe Teens 
of Witnesses .. Moe van Re ee 
Article VI. Of the Compensation afi tnensca Cares VGN 279 
Article VII. Of the Appraisal of the Depositions of ayitnerecs Hn Were 
Chapter III. Of Experts. . . Tie er en SA eo ER a SOU 
Chapter IV. Of Judicial Access nad Tnerectien DE Fa: OREN AUR Ht ay tes} 
Chapter V. Of Documentary Proof . . MIS MONE AN terns: 
Article I. Of the Nature and Weight of Beatnents mt 9 . 284 

Article II. Of the Exhibition of Documents and of the Neace to 
Poree ttheir teh Dition ere a ee etn ch Cte NS ORT 
Chapter VI. Of Presumptions . . MRO Cee hte eee LM WAT ORS 
Chapter VII. Of the Oath of the aries MME elas: PME Slt AR ye DOO 
atiooN LaOte Incidental Cases Samant iiclt Mame ei wil ud, ate eter ee ZOD 
Chapter I. Of Contempt of Court . . a 203 
Chapter IJ. Of the Intervention of a Third Parevit ina @ise Sinn 297 

Chapter III. Of Attempts Prejudicial to the Object in Conrcreat 
Pending the Litigation. . . 298 

Title XII. Of the Publication of the Process, the Gloag nf the Cake a 
Pleading wie Me Ber OUT eile bia as oie Lee SOO) 
Title XIII. Of the Sentence... mens Me @ Sait are Beas 4 
Title XIV. Of Legal Remedies A atiet the Serienee SL cls Rare ee as eae ates A 
Chapter I. Of the Appeal. . A oOG 
Chapter II. Of the Complaint of N nihey ee, the Benietice ei SOD 


Chapter III. Of the Opposition of a Third Party.. . . . . . . 8ll 


vill CONTENTS 


Title XV. Of the Res Judicata and Reinstatement in Former Position . 


Title XVI. Of the Costs of Trials and of Gratuitous Legal Service 
Chapter I. Of the Costs of Trials. . 
Chapter II. Of Gratuitous Legal Service Ae Rednencn ae judicial 
Expenditures . Fats 
Title XVII. Of the Execution of the Sentence 
Srection Il.—Or ParticutaR REGULATIONS TO BE Cnn IN 
CERTAIN TRIALS . . 
Title XVIII. Of the Ways of Avoiding Civil T vale 
Chapter I. Of Compromise . : 
Chapter II. Of Compromise by rhieenean 
Title XIX. Of Criminal Trials. : ; 
Chapter I. Of the Action of Accusation ara of Dsnvaeirnon 
Chapter II. Of the Investigation . ’ 
Chapter III. Of the Rebuke of the Ofendes ; 
Chapter IV. Of the Criminal Prosecution and the Sumani of he 
Offender . Te awe ; 
Title XX. Of Matrimonial Cases . 
Chapter I. Of the Competent Forum 
Chapter II. Of the Constitution of the pana 3 
Chapter III. Of the Right to Attack Marriage and Parien Han a 
Dispensation from Unconsummated Marriage . 
Chapter IV. Of Proofs 
Article I. Of Witnesses : 
Article II. Of Bodily Inspection. . 
Chapter V. Of the Publication of the Braces Cleans af ihe Hive 
dence, and Sentence SONS ate re : 
Chapter VI. Of Appeals : 
Chapter VII. Of the Cases Excepted: for ie Horntiest aft an 
Ordinary Trial . 
Title XXI. Of Cases Against Sacred Graertion! 


PART TWO—Or Causes oF THE BEATIFICATION OF SERVANTS OF GoD 
AND THE CANONIZATION OF THE BEATIFIED 


Title XXII. Of some Persons who take Part in These Processes . 
Chapter I. Of the Actor and Postulator . / 
Chapter II. Of the Cardinal Relator, Promoters of the Faith ath 
Sub-Promoters .. : 
Chapter IIT. Of the Notary, Ghanealar and A tore : 
Title XXIII. Of the Proofs to be Supplied in These Processes 
Chapter I. Of Proofsin General .. 
Chapter II. Of Witnesses and Experts 
Chapter III. Of the Documents to be Stbmiitted’s in ae Punkees 7 
Title XXIV. Of the Process of Beatification of Servants of God by the 
Way of Non-Cult. .. 
Chapter I. Of the Processes Conducted by the iter Ontinaess in His 
Own Right . SN LR Ok me 


PAGE 


313 


. 315 


315 


. 316 


. 318 


. 321 
. 321 
. 321 
. 323 
. 325 
. 325 
. 328 


. 330 


. 332 
. 334 
. 334 


339 


. 342 
. 343 
. 343 


345 


. 346 


347 


. 347 
. 350 


. 362 
. 356 


356 


. 357 
. 358 
. 359 
. 359 
. 360 
. 363 


364 


, 364 


CONTENTS Ix 


PAGE 
Article I. Of the Examination of the Waene of a Servant of God. 365 
Article II. Of the Informative Process. . NUS thee WS aA a3) & 
Article III. Of the Process Regarding Non-Cult REM Roe st Wa) rt sO 


Article IV. Of Transmission to the Sacred Congregation of the 
Process on the Writings of the Servant of God, of the 

Informative Process, and of the Process of Non-Cult . 369 
Chapter II. Of the Introduction of the Cause Before the Sacred Con- 


gregation. . SENN Stig mat ohh eet St OO 
Article I. Of the Review of ie avieatiee Bri! seats Pvp oOo 
Article II. Of the Discussion on the Informative Progees ius sll BCs Yi | 
Article III. Of the Discussion of the Process on Non-Cult . . . 372 
Chapter III. Of the Apostolic Processes... SPL Sali Bas Y fs 
Article I. Of the Institution of the Apostolic Brandan Seki 373 
Article Il. Of the J Raia on the Validity of the iMectaie 

Process.’ . SY 6s) 

Article III. Of the J Ghement on ite Horie Ghareter oe the Virtlics 
in Particular, or on the Martyrdom and its Cause. . 376 

Article IV. Of the J Gagient of the Miracles of a Servant of God in 
Particular. . 378 

Title XXV. Of the Process of Bentificaticn: of Ae i God hy ihe 
Way of Cult or the Exceptional Case . . . . . . 380 
Title XX VI. Of the Canonization of the Beatified . . . . . . . 382 


PART THREE—Or tur MANNER OF PROCEDURE IN CONDUCTING 
CERTAIN AFFAIRS AND IN THE APPLICATION OF 


PENALSANCTIONS .. . . 383 

Title XXVII. Of the Manner of Procedure in the Removal of eaae 
able Pastors. . . 384 

Title XXVIII. Of the Manner of Procedre in is ipeinoval of Remove 
able Pastors. . . . 390 


Title X XIX. Of the Manner of Proce in te Dransree of Dake nse . 391 
Title XXX. Of the Manner of Procedure Against Clerics Violating the 


Law of Residence .. . 392 

Title XXXI. Of the Manner of Rrocedure Against Glories Vay in 
Concubinage ... . 394 

Title XXXII. Of the Manner of Procedure eee a Pager Nevers 
in the Fulfillment of His Pastoral Duties . . . 395 
Title XX XIII. Of the Manner of Procedure for Infliction of rhe Suspen- 
SION eeu 1OTnand COTSCLENnLA as iru PO le inn ie OOO 

Book FIvEe 

OF OFFENSES AND PENALTIES. .. . . 401 
PART ONE—Or OFfFrensgs .. Ree Se RT k chien ee ADL 
Title I. Of the Nature and Denon of Onaiees et Sutin ea is SPL 


Title II. Of the Imputability of an Offense, the Causes mien BS openvate 
or Diminish Imputability, avid the Juridical Consequences 
OLB CCS S ha des Na ate Me RAM Attn Nee hg AOS 


x CONTENTS 


PAGE 
Title TIT. Of ‘Attempted Offenses. sh 2 oye tat ee pl en ree 411 
PART) TWO--OPruPENALTINS (hint esl ni (etniyts oc let ee ee 
Section I—Or PENALTIES IN GENERAL . . 412 

Title IV. Of the Definition, Species, Interpretation ana Application ap 
Penalties . . a) Se . 412 
Title V. Of Superiors who Have ‘exges Pane Seis. eh ude ARS a aan Eo 
Title VI. Of the Persons Subject to the Coercive Power. . . . . 419 
Title VII. ‘Of the Remission of Penalties se ecm un pra enemies 
SEGTION IlL_-Or PENALTIES SIN (PARTICULAB Glue) 0 Semmes unrammaas oat 
Title VIII. Of Medicinal Penalties or Censures. . . . . . . - 427 
Chapter I. Of Censuresin General . . © - + + + + = | 427 
Chapter IJ. Of Censuresin Particular. . . - - + - + + : 438 
Article.1. Of dexcommunication , jess cdi es eek a ee es 
Article LLU Of the interdict cats ty ne oe) kein allies) carte ean 
Wrticle IL1., Of: Suspension®. 76 “peg aeureenmsenee sit) oct ee oer Oe 449 
Title IX. Of Vindicative Penalties . . Spe Bhs WI Fa rms rE Oe 
Chapter I. Of Common Vindicative Penaiticn AY tty ne eles 4.00 
Chapter II. Of Vindicative Penalties Special to the Cheney ee kee ADD 
Title X. Of Penal Remedies and Penances . . . a eae) a ge ey 
Chanter pl. Of sPenalsRemedies 2” sui; sues merit or ee ees ean 462 
Chapter II. Of Penances . ite 7ii507 cea ean oii em ee, 463 
PART THREE—Or Penauties Acainst INDIVIDUAL OFFENSES . . 465 
Title XI. Of Offenses Against the Faith and Unity of the Church. . 465 
Title XII. Of Offenses Against Religion . . 472 

Title XIII. Of Offenses Against Ecclesiastical ores Perens and 
Lningssegee 480 

Title XIV. Of Offenses eninct Tare Taner Property, iGood Rentie 
and Christian Morality . . . . Apo Pags . 499 
Title XV. Of Forgery and Other Falsehoods. . . 504 

Title XVI. Of Offenses Committed in the Pp oeanieeeion or PRecantion 
of Orders and Other Sacraments. 507 

Title XVII. Of Offenses Against the Obligations Proper ie the Clerical 
and Religious States... . 514 


Title XVIII. Of Offenses in the Conferring or Heccntion of iG Dee 
sal from Ecclesiastical Dignities, Offices and Benefices. 521 


Title XIX. Of the Abuse of Ecclesiastical Authority or Office . . . 527 

PROFESSIO CATHOLICAE PIDEIpy =). 5) ol eae ne 
IURISIURANDI FORMULA CONTRA MODERNISMI DOC- 

ERIN AS 3 (24a ee bes Re Oe Uh Ac et en hae 

AppeNnpIx I. Summary bi the Documents Concerning Papal Elections. 538 

Constitution of Pius X, “‘Vacante Sede Apostolica” . . 538 

Constitution of Pius X, ““Commissum Nobis” . . . 538 

Constitution of Leo XIII, ‘‘Praedecessores Nostri” . . 538 


Constitution of Benedict XIV, “Cumillud” . . . . 539 


AppenprIx II. 


APPENDIX ITI. 


APPENDIX IV. 
APPENDIX Y. 
BIBLIOGRAPHY 


INDEX OF SUBJECTS . 


CONTENTS 


Constitution of Benedict XIV, “Sacramentum Poeni- 
tentiae ”’ 

Constitution of Grerory XV, ‘ fr versie 

Constitution of Paul ITI, “Altitudo ” 

Constitution of Pius V, creat: Pontificis ”’ 

Constitution of Gregory XIII, ‘‘Populis ” . 


Summary of Censures and Other Penalties Tee 
Automatically (latae sententiae) 


Summary of the Documents of the Roman Pontiff a the 


Sacred Congregations, Affecting the Laws of the Code. 
1 Linye 
. 646 


Summary of Faculties of the Apostolic Delegate . 
Summary of the Faculties of Bishops 


x1 


PAGE 


. 550 
. 554 
. 557 
. 557 
. 558 


. 560 


565 


. 657 


. 663 


aes 
igi > 


j 


wiv 
if Vie mr) i 





A PRACTICAL COMMENTARY 
ON THE CODE OF CANON LAW 


Tue Turrp Boox 
OF THINGS 


PART TWO 
OF SACRED PLACES AND SEASONS 
Section I 


OF SACRED PLACES 


1192. Sacred places are those which are set apart for divine 
worship or for the burial of the faithful by consecration or bless- 
ing as prescribed by the approved liturgical books (Canon 1154). 

The consecration of a place, even though it belongs to the 
regulars (i.e., religious organizations of men with solemn vows), 
pertains to the Ordinary of the territory in which such place is 
situated, provided the Ordinary has the episcopal character. 
The vicar-general, however, needs a special mandate to entitle 
him to consecrate a place. Cardinals have the right to consecrate 
the church of their title and the altars in that church. The Ordi- 
nary of a certain territory, though he is not a consecrated bishop, 
can give permission to any bishop of his own rite to perform con- 
secrations in his territory (Canon 1155). 

The consecration or the blessing of a place requires both the 
powers of orders and of jurisdiction. Essentially there is no dif- 


2 A PRACTICAL COMMENTARY 


ference between the consecration and the blessing of a place, but 
the consecration is a more solemn dedication of a place for divine 
worship or for Christian burial, and Canon Law attributes 
greater consequences to the consecration than to the blessing. In 
reference to the jurisdiction over the place which is to be conse- 
erated, the Code rules that the local Ordinary is the only one who 
has the right to consecrate sacred places, even churches and ceme- 
teries belonging to exempt religious organizations. If the local 
Ordinary is not a consecrated bishop (as happens quite fre- 
quently in the ease of Prefects and Vicars Apostolic), he has no 
power to consecrate places unless it be given to him by indult of 
the Holy See, but nobody else can consecrate a place in his terri- 
tory (even a church or cemetery belonging to exempt religious) 
without his consent, as Canon 1157 states explicitly. 

1193. The faculties given to the bishops in the United States 
empower them to delegate priests for the consecration of altars 
and chalices, but do not grant power to delegate priests for the 
consecration of a place. Formerly it was debated among theo- 
logians whether a priest authorized by his local Ordinary could 
validly consecrate a place or an object (e.g., altars and chalices). 
At present there can be no controversy on this point, for Canon 
1147 states explicitly that nobody without the episcopal character 
ean validly perform consecrations, unless this is permitted to him 
either by law or by indult of the Holy See. 

1194. The right to bless a saered place that belongs to the 
secular clergy or to a non-exempt religious or to an exempt laical 
congregation, is vested in the local Ordinary of the territory 
where the place is situated; if the place belongs to an exempt 
clerical religious body, the major superior has the right to bless 
it. Both the Ordinary of the territory and the major superior of 
the religious community may delegate a priest for the blessing of 
such places (Canon 1156). Notwithstanding any privilege to the 
contrary, nobody can consecrate or bless a place without the 
consent of the Ordinary (Canon 1157). 

1195. The consecration of a place is exclusively reserved to 
the local Ordinary within his territory of jurisdiction, even the 
consecration of churches and cemeteries of exempt religious; the 
blessing of places is reserved to the local Ordinary with the ex- 
ception of the blessing of places belonging to exempt religious, 


1 Coronata, ‘‘De locis et temp. sacris,’’ n. 5, 


CANONS 1156-1159 3 


and in these places of exempt religious the blessing is reserved 
to the major religious superior. Nobody can consecrate or 
bless places without the consent of the ecclesiastical authority 
to which such consecration or blessing is reserved. In exempt 
religious organizations nobody ean bless a place belonging to 
them without the consent of the major superior of the re- 
ligious; for this reason the Code uses the term Ordinary, not 
local Ordinary, so as to cover all cases. No privilege against 
this right of the respective Ordinary is recognized by the Code. 
If commentators on the Code say that by Canon 1157 no privi- 
leges are revoked, this is true in so far as direct revocation is 
concerned, but indirectly a privilege which (for instance) a 
religious order obtained to have its churches or cemeteries conse- 
crated by any Catholic bishop without the necessity of obtaining 
the consent of the local Ordinary, would be revoked by the state- 
ment of the Code that in this particular matter no contrary 
privilege can be invoked against the right of the respective Ordi- 


nary. 


RECORD AND PROOF OF CONSECRATION OR BLESSING OF A PLACE 


1196. A document shall be drawn up attesting to the fact of 
the consecration or blessing of a place; one copy shall be kept in 
the episcopal Curia, and another in the archives of the respective 
church (Canon 1158). The consecration or blessing of a place 
is proved sufficiently by even one absolutely trustworthy witness, 
provided nobody’s rights are injured thereby. If there is legal 
proof of the consecration or blessing of a place, neither can be 
repeated; in doubtful cases, they may be given ad cautelam 
(Canon 1159). 

A properly authenticated document of the consecration or 
blessing of a church or cemetery is considered a public ecclesi- 
astical document which constitutes full proof of the fact which 
it attests (efr. Canons 1813 and 1816). In controversies about 
conflicting rights or claims, and likewise in criminal cases, one 
witness does not fully prove any fact, unless it be a witness who 
testifies as to the acts done by him in virtue of the office he holds 
or held (cfr. Canon 1791). Outside of judicial proceedings 
Canon Law in some instances accepts one witness as proof of a 


4 A PRACTICAL COMMENTARY 


fact—e.g., in the present matter, in proving Baptism (efr. Canon 
779), Confirmation (efr. Canon 800)—but, whenever the testi- 
mony of one witness is accepted as proof of a fact, the Code takes 
care to state that it must be a case in which no damage or injury 
is done to a third party. oa 


SACRED PLACES ARE EXCLUSIVELY UNDER THE JURISDICTION OF 
THE CHURCH 


1197. Sacred places are exempt from the jurisdiction of the 
eivil authority, and in them the legitimate ecclesiastical authority 
freely exercises its jurisdiction (Canon 1160). 

It is the teaching of the Catholic Church that by the law of 
Christ there are two independent powers, the secular and the 
spiritual or ecclesiastical. Each owes its existence and its 
authority to the divine institution, and each has its own field of 
action and its own peculiar rights and duties according to the 
purpose assigned to each by God. One power may not infringe 
on the rights of the other, but according to God’s plan they 
should both assist each other and work in unison and harmony 
for the common welfare of society. 

In countries like the United States, no Giiean (neither the 
Catholic nor any other) is admitted as such to have any rights 
as a divinely instituted organization charged with the eare of 
the spiritual aspect of man’s nature. There is not—and by the 
Constitution of the United States there cannot be—any official 
recognition of any religious denomination as an organization 
endowed with powers of its own. Nevertheless, the Catholic 
Church and the various other Christian denominations enjoy 
great liberty, and the law gives them many privileges to facilitate 
their work for the spiritual training and Christian education of 
their respective adherents, because Christian ideals and Christian 
life have been recognized, by the Federal government as well as 
by the individual state legislatures, as most beneficial to the 
general welfare of the nation. For this reason the Church in the 
United States has been able to live and work generally unkham- 
pered by the civil power, and, if there has been some interference, 
it has not been frequent. 


CANONS 1160-1162 5 


TITLE IX 
OF CHURCHES 


1198. By the term ‘‘churech’’ is meant a sacred edifice dedi- 
cated to divine worship, especially with a view to enabling all the 
faithful to practise public worship (Canon 1161). 

The definition of the term ‘‘church’’ is given here mainly 
to distinguish it from other sacred places used for divine worship. 
A church, properly so called, is open to all Catholics, and is des- 
tined for the public practice of divine worship. Other chapels, 
oratories, and houses of prayer are either not open to all Catholies 
(but only to certain communities, confraternities, etc.), or, if they 
are open to all, they are not officially appointed for the public 
practice of divine worship, but rather for private devotion. 


Wuo Has tHE Ricut to Buitp A CHURCH? 


1199. No church shall be erected without the explicit written 
consent of the local Ordinary. The vicar-general cannot give this 
consent without a special mandate, nor shall the Ordinary give 
it unless he prudently foresees that the necessary means for the 
building and maintenance of the new church, for the support of 
the necessary ministers, and for defraying other costs of the 
divine worship, will not be wanting. 

In order that the new church may not, without proportionate 
spiritual benefit to the faithful, injure the interests of churches 
already established, the Ordinary, before giving his consent for 
the building of a new church, should hear the rectors of such 
neighboring churches that may be concerned, the law of Canon 
1676 being also observed. (That Canon gives to parties who think 
themselves injured by the erection of a new church, or other new 
ecclesiastical undertaking, the right to object, and from the 
moment protest is made operations must come to a standstill until 
a decision has been reached by the ecclesiastical court.) 

Religious organizations also, though they have obtained con- 
sent from the local Ordinary for the erection of a new house in 
the diocese or in a city, must obtain permission from the local 
Ordinary before they build a church or a public oratory in a 
certain and definite place (Canon 1162). 

1200. The rule of the Code that no church may be erected 


6 A PRACTICAL COMMENTARY 


without the consent of the local Ordinary is very ancient. The 
Council of Chalcedon (451) ordained that nobody shall establish 
a monastery or a house of prayer (oratoru domum) without the 
consent of the bishop of the place.2 Popes Innocent III and 
Alexander IV forbade exempt persons to erect without permis- 
sion of the bishop churches and oratories outside their exempt 
territory.’ 

The Code makes the rule about the consent of the Ordinary 
of the place so absolute that it requires this consent even though 
a religious organization has obtained permission to establish a 
house. Canon 497 also refers to this matter; while it states that 
the permission given to clerical religious organizations to estab- 
lish a house carries with it the right to have a church or public 
oratory adjoining such a house, it demands that the rule of 
Canon 1162 be observed concerning the approval of the local 
bishop.* 

BLESSING OF THE CORNER-STONE OF CHURCHES 


1201. The blessing and laying of the corner-stone of a church 
belongs either to the local Ordinary or the major religious 
superior, according to the rule of Canon 1156 determining the 
right to bless a church (Canon 11638). 

According to Canon 1156 the local Ordinary has the right to 
bless all churches within his territory except the churches of 
exempt clerical organizations of religious. 


ARCHITECTURE OF CHURCHES 


1202. The Ordinaries should take care to have the churches 
built or restored according to approved Christian traditions of 
ecclesiastical architecture, and in conformity with the laws of 
sacred art, consulting for this purpose, if necessary, experts in 
ecclesiastical architecture. In a church there must be no door 
or window opening into a house of lay persons. The space below 
the floor or above the ceiling of the church, if there be any, shall 
not be used for purely profane purposes (Canon 1164). 

The Ordinaries—namely the bishop in charge of the diocese 
and other local Ordinaries, and the major religious superiors of 


2 Decretum Gratiani, ce. 10, C. XVITI, qu. 2. 

3 Decret. Greg. IX, c. 14, De Prwil., lib. V, tit. 33; Liber Sextus, ec. 4, 
De Privil., lib. V, tit. 7. 

4 Schafer, ‘‘Ordensrecht,’’ 49. 


CANONS 1163-1164 7 


exempt clerical organizations of religious—are here commanded 
to see that the churches are built in such a style and shape as to 
be in harmony with ecclesiastical architecture and serve to elevate 
the minds of those who use the church for divine worship. The 
very highest human art and the best material should, in so far 
as possible, be requisitioned for the House of God. Frequently, 
however, financial circumstances make it impossible to erect a 
building really worthy of the high purpose for which a church is 
destined. Yet, a skilful architect can at least put up a neat, 
attractive and serviceable church at moderate cost. Ordinaries 
certainly have the right and the duty to inspect and carefully 
study the plans of the architect before they are accepted. 

1203. Rooms in the basement of a church and space above the 
ceiling of a church may not be used for purely profane purposes. 
It is wrong to have an entertainment hall in the basement or over 
the church, for this shows lack of respect for the presence of our 
Lord and for the place of divine worship. In many places in 
the United States a so-called combination building is erected 
when a parish is first established. On the first floor is the church, 
on the second the school, and on the third floor in some instances 
the living quarters of the Sisters teaching in the school; in other 
instances, the third floor is an auditorium serving for assemblies 
and for entertainments. It seems there is nothing against the 
law of the Church in having the floor absve or below the church 
occupied by the parochial school, for that is not a purely profane 
purpose. As to sleeping quarters above the church, the Sacred 
Congregation of Rites was asked whether the clerics of a certain 
seminary might live day and night in the rooms built over the 
side aisle of the cathedral church, and answered that this is 
absolutely forbidden.® 


CHurRcH Must Bre BLESSED oR CONSECRATED BEFORE Ir Is Usep 
FoR DIVINE WorRSHIP 


1204. Divine worship cannot be held in a new church before 
it has been dedicated to divine worship by solemn consecration, 
or at least by blessing. If it can be prudently foreseen that the 
chureh will eventually be converted to profane purposes, the 
Ordinary shall not give his consent for building the same, or, if 


5 May 11, 1641; Decreta Authentica, n. 765. 


8 A PRACTICAL COMMENTARY 


it has already been built, shall neither consecrate nor bless it. 
Cathedral churches should be dedicated by solemn consecration 
and also, in so far as possible, collegiate, conventual and parochial 
churches. A church built of wood, or iron or other metal, may 
be blessed, but it cannot be consecrated. An altar may be conse- 
erated without consecrating the church, but in the consecration 
of a church at least the main altar must be consecrated, or, if the 
main altar is already consecrated, another altar (Canon 1165). 

The law that Holy Mass and other divine services may not 
be celebrated in a new church until it has been dedicated to 
divine worship by competent ecclesiastical authority is an an- 
cient rule of Canon Law.® Though the several canons ascribed 
by the Decree of Gratian to early Popes and Councils are 
apocryphal, nevertheless canonists agree that the law forbidding 
divine worship in churches prior to their solemn dedication was 
introduced into the discipline of the Church by ancient custom.’ 
The law does not absolutely insist on the consecration of churches, 
but is satisfied with the solemn blessing. Churches built of wood, 
iron, or other metal may not be consecrated but only blessed. 
The churches to be consecrated must be built either of stone, 
brick, or cement. About the cement there was formerly some 
doubt, but the Sacred Congregation of Rites has answered that 
such a church may be consecrated provided the twelve places on 
the walls where the crosses are anointed and the door posts be of 
stone.’ 


Days ON WHICH THE CONSECRATION May Br HELpD 


1205. Though the consecration of churches may take place on 
any day, nevertheless Sundays and holydays of obligation are 
more becoming. The consecrating bishop and those who ask for 
the consecration must keep the fast on the day previous to the 
consecration. When a church or an altar is consecrated, the 
officiating bishop, though he has no jurisdiction in the territory, 
can give an indulgence of one year to those who visit the church 
or the altar on the very day of the consecration, and on the anni- 
versary fifty days if a bishop consecrates, one hundred days if an 


6 Pope Bened. XIV, ‘‘De Sacros. Misse Sacrificio,’’ lib. IIT, cap. 6, n. 1, 
7 Decretum Gratiani, ec. 1, 2, 11, 14, 15, D. I, De Conseer. 
8 Decreta Auth. (Nov. 2, 1909), n. 4240. 


CANONS 1165-1167 9 


archbishop, and two hundred days if a Cardinal performs the 
ceremony (Canon 1166). 

The Sacred Congregation of Rites declared that the fast on 
the day preceding the consecration of a church is of strict obliga- 
tion for those who ask that the Church be consecrated.” 
Gasparri states that the doctors explaining this obligation hold 
that it applies to all the clergy belonging to that church, but not 
to any of the lay persons.’° 


FEAST OF THE DEDICATION OF A CHURCH 


1206. The feast of the consecration of a church is to be kept 
annually according to the liturgical laws (Canon 1167). 

On the day of the consecration the clerics attached to the par- 
ticular church must say the Office of the Dedication of the 
Church, beginning that Office with Tieree,14 while Matins, Lauds 
and Prime are to be said from the Office of the Day. If altars 
only are consecrated, no office of the dedication is to be said. The 
priests (and other clerics in major orders) attached to a chureh 
that has been consecrated must recite the Office of the Dedication 
on the anniversary of the consecration (instead of the Office of 
the Calendar). About this anniversary the Sacred Congrega- 
tion has ruled that, if it has been the custom in a diocese or 
institute to keep the dedication of all consecrated churches on 
one day, the bishop, after consultation with the Cathedral Chap- 
ter (or diocesan consultors), may appoint that day; but, if, in a 
diocese the clergy of each consecrated church have kept the anni- 
versary of such church, this custom should be continued. The 
anniversary of the dedication of the cathedral church may not 
be celebrated together with the dedication of all the churches of 
the diocese; if the true date of the dedication is unknown, the 
bishop after consulting the Cathedral Chapter (or diocesan con- 
sultors) shall appoint a day once for all. If a diocese, order, 
or congregation observes one day as the anniversary of all conse- 
erated churches, only the clergy attached to consecrated 
churches say the Office of the Dedication.12, The revised rubrics 
provide that the anniversary of the consecration of the cathedral] 

9Decreta Auth. (July 29, 1780), n. 2519. 

10 De SS. Eucharistia, I, n. 163. 


11 Decreta Auth. (Dee. 7, 1844), n. 2868. 
12 October 28, 1913; Acta Ap. Sedis, V, 458. 


10 A PRACTICAL COMMENTARY 


church is to be kept as a double of the first class with an octave 
by the secular clergy and also by those regulars who use the 
diocesan calendar ; the regulars in the diocese who have a proper 
calendar must keep the anniversary as a double of the first class 
but without an octave. 


TITLE OF CHURCHES 


1207. Each church which is either consecrated or blessed shall 
have its title, which it is forbidden to change after the dedication 
of the church has been performed. The titular feast of the 
church is to be celebrated annually according to the laws of the 
sacred liturgy. Churches cannot be dedicated to beatrfied per- 
sons without an indult of the Holy See (Canon 1168). 

Churches are to be named only after saints or after the sacred 
mysteries of the Catholic faith. The nomination is done in the 
act of the solemn blessing or consecration. The bishop may not 
name a church after a saint or a mystery which is not contained 
in the Roman Martyrology or the approved supplement of the 
diocese.7® If the title of a church is a saint who has no office in 
the Breviary, the office is taken from the Commune Sanctorum." 
If the title has the names of two saints and they occur 
on different days in the liturgical calendar, the feast of each saint 
has to be kept on his or her respective day.® If a church 
is named merely after the Blessed Virgin, without the addi- 
tion of a particular mystery or title, the titular feast is to be 
kept on the Assumption of the Blessed Virgin, August 15.7*° 

The feast of the title of the church is to be kept by the clergy 
legitimately attached to the particular church on the day on 
which the feast or mystery occurs in the calendar. This rule 
applies to all churches which have been either consecrated or 
blessed. The rank of the titular feast is a double of the first class 
with an octave. The title of the cathedral church is to be cele- 
brated as a double of the first class with an octave by the entire 
clergy (secular and regular) residing in the diocese, but the 
regulars who have a calendar of their own keep the title with- 
out an octave. 

, n. 3876. 
, n. 3661. 
., 2. 3687, 
glsanpag, 


13 Decreta Authentica S. R 
14 Decreta Authentica S. R. 
15 Decreta Authentica S. R. 
16 Decreta Authentica S. R 


CANONS 1168-1169 11 


CuurRcH BELLS 


1208. It is appropriate that each church should have bells by 
means of which the faithful are invited to divine services and 
other religious acts. The church bells should be either conse- 
erated or blessed according to the rites of the approved liturgical 
books. Their use is exclusively subject to the ecclesiastical 
authorities. Without prejudice to conditions stipulated by the 
donor of a church bell, which conditions are valid only if ap- 
proved by the Ordinary, the blessed bells may not be rung for 
merely profane purposes, except in a case of necessity, or with the 
permission of the Ordinary, or in obedience to legitimate custom. 
With reference to the consecration or the blessing of church bells, 
the rules laid down in Canons 1155 and 1156 shall be followed 
(Canon 1169). 

The right of conseerating church bells of any church within 
his diocese belongs to the local Ordinary, as Canon 1155 states 
about the consecration of churches; the right of blessing church 
bells belongs likewise to the local Ordinary, with the exception 
of the bells in churches of exempt clerical organizations of 
religious in which the blessing is reserved to the major superior 
(Canon 1156). The prayers and ceremonies for the consecration 
of church bells are found in the Ponttficale Romanum. When a 
priest by delegation of the bishop, or a major religious superior 
by the power given him in Canon 1156 blesses church bells, he 
must employ the prayers and ceremonies as prescribed by Decree 
of the Sacred Congregation of Rites, January 22, 1908.77 

A Decree of Pope John XXII forbade the Mendicant Re- 
ligious Orders to have more than one bell in their church towers.** 
The Code makes no restriction, but states generally that it is 
desirable that each church should have bells. There is also an 
ancient law that in the episcopal city no other church, secular or 
regular, may ring the bells on Holy Saturday until the bells of 
the cathedral church are rung.*® 


17 Acta S. Sedis, XLI, 118. 

18 Kxtravagantes Communes, ce. unicum, De Officio Custodis, tit. 5. 

19 Sacred Congregation of Rites, November 14, 1615; Decreta Auth., 
n. 337. 


12 A PRACTICAL COMMENTARY 


Loss or CONSECRATION 


1209. A church does not lose its consecration or blessing 
unless it is totally destroyed, or the greater part of the walls col- 
lapses, or it has been reduced to profane purposes by authority 
of the local Ordinary, as provided by Canon 1187 (Canon 1170). 

Various cases as to additions made to a church, renovation of 
the inside of the church (even by taking off all the plaster of the 
walls), and destruction of the roof by fire or other causes, have 
been decided by the Sacred Congregation of Rites. The Code 
summarizes these decisions in a few words. Additions to a 
church do not cause loss of the consecration or blessing unless the 
addition is larger than the original church, or transforms the 
entire church beyond recognition, for in these cases it would 
be considered a new building. 


RELIGIOUS SERVICES IN CONSECRATED OR BLESSED CHURCHES 


1210. In saered edifices which have been legitimately dedi- 
cated, all ecclesiastical functions may be performed which do not 
prejudice the rights of parochial churches and rights acquired by 
privilege or by legitimate custom. The Ordinary may for a just 
cause fix the hours for the sacred functions—not, however, in the 
case of the churches of exempt regulars, except as provided by 
Canon 609 (Canon 1171). Canon 609 gives the Ordinary the 
right to judge whether the services in the churches of the 
regulars interfere with the people’s attendance at the explana- 
tion of the Gospel and catechetical instruction in the parish 
church (supposing that the regular church does not serve also as 
a parish church), and, if the bishop believes that the services at 
the monastery church so interfere, he may forbid the regulars to 
have public services in their church during those hours. 

The rubries of the sacred liturgy indicate that some of the 
sacred rites and functions are reserved to parochial churches and 
to the pastor of these churches. Canon 462 specifically 
enumerates these functions (cfr. Volume I, n. 338). 


POLLUTION OF CHURCHES 


1211. A church is polluted only by the crimes here enumer- 
ated, if they are certain, notorious, and committed within the 


CANONS 1170-1172 13 


church itself: (1) homicide; (2) a sinful and serious shedding 
of blood; (8) godless and disgraceful uses to which the church 
has been converted; (4) burial of an infidel or of a person excom- 
municated by condemnatory or declaratory sentence. By the 
pollution of the church, the cemetery adjoining the church is not 
necessarily polluted, or vice versa (Canon 1172). 

These crimes must be committed not only as to their exterior 
effects, but must be really crimes—that is to say, gravely sinful 
actions the sinfulness of which is manifest from the external cir- 
cumstances. One can judge only from known circumstances of 
the culpability of a man who acts against the law, for no absolute 
conclusion as to a person’s guilt in conscience ean be had by 
human knowledge. The four offenses here enumerated were also 
considered by the former Canon Law to violate the dignity of a 
consecrated or blessed church. Under homicide wilful suicide is 
included. The various disreputable purposes to which a church 
may be exposed (especially in times of war, rebellion, persecu- 
tion, ete.) are not specified in law, but any purpose that gravely 
violates the dignity and honor due to a public place of divine 
worship pollutes the church. The Code omits the effusto seminis 
humani. which, in the former law, was one of the offenses that 
pollute the church. About the burial of unbaptized persons 
there was some doubt in the former law. Among unbaptized per- 
sons, canonists excepted catechumens and infants of Christian 
parents, saying that they were not in the strict terminology of 
the law included under the term ‘‘infidels.’’ Concerning the 
eatechumens who without their own fault die before receiving 
baptism, the Code (Canon 1239) explicitly confirms the opinion 
of the canonists by saying that, in the matter of burial, they are 
to be considered equivalent to baptized persons. While the Code 
makes explicit provision for catechumens, it makes no special 
concession for infants of Catholics dying without baptism, but 
rules generally in Canon 1239 (the very Canon that makes the 
exception) that persons who die without baptism are not to be 
given ecclesiastical burial. Rossi holds that infants of Catholics 
who die without Baptism may not receive Christian burial,?° 
while Coronata”! is of the opinion that they do not come under 
the term of ‘‘infidels.’’ The argument of Gasparri and other 


20 La Sepultura Ecclestastica, n. 69. 
21 De Locis et Temporibus Sacris, n. 28, 


14 A PRACTICAL COMMENTARY 


canonists, who wrote before the Code, in favor of infants of Chris- 
tian parents is not of much value now, because formerly, as 
Gasparri points out,?? it was not certain in Canon Law that the 
burial of an infidel pollutes the church in which he is buried. 
Priummer ** and Augustine 74 both hold that unbaptized infants 
are included in the term ‘‘ infidels.’ 

1212. The pollution by the burial of an excommunicated per- 
son applies also to a cemetery, but it is disputed whether he must 
be an excommunicatus vitandus, or whether the burial of any one 
excommunicated by sentence of a competent ecclesiastical court 
pollutes church or cemetery. The reason for the doubt is that 
Canon 1242, speaking of the removal of an excommunicated per- 
son buried in a Catholic cemetery, speaks explicitly only of ex- 
communicati vitandr. Canon 1175 speaking of the removal of an 
excommunicated person buried in a chureh does not qualify the 
sort of excommunication, but simply says that, if the church has 
been polluted by burial of an excommunicated person, the body 
is to be removed from the church before the rite of reconciliation 
is performed. It seems that the text of Canon 1172—saying that 
the church is polluted by the burial of a person excommunicated 
by a declaratory or condemnatory sentence of excommunication 
—is clear, and one cannot understand it only of excommunicatt 
vitandi, without making a gratuitous addition to the specification 
of the Code. Canon 1175 evidently refers to Canon 1172 when 
it says that the body of:an excommunicated person by whose 
burial the church was polluted is to be removed before reconcilia- 
tion. Why does Canon 1242 insist only on the removal of an 
excommunicatus vitandus from a cemetery—not of persons ex- 
communicated by sentence of an ecclesiastical court? One reason 
why the law stands thus may be that the Church is more severe 
in reference to burial in a church.” 

1215. The offenses which pollute a church must: (1) be cer- 
tain both as to law and fact; (2) be notorious either by notoriety 
of law (which comes through final sentence of a competent court 
pronouncing one guilty of the crime, or by confession of guilt in 
the court) or by notoriety of fact, which is deseribed in Canon 
2197 as being publicity of the offense to such an extent that it 


22 we SS. Eucharistia, I, n. 253. 

23 Manuale Jur. Can., qu. 375, p. 446. 

24 Commentary, VI, 38. 

25 Rossi, ‘‘La Sepultura Eccl.,’’ n. 31, footnote, p. 52. 


CANONS 1173-1175 15 


eannot be kept secret, nor be excused by any excuse admitted in 
law. It does not seem necessary that the commission of the 
offence was notorious, but it suffices that it become widely public 
afterwards; (3) have been committed inside the church. In 
odiosis, the sacristy is generally not considered to be part of the 
church. The basement is part of the chureh only when it really 
serves for divine worship, and an entrance leads from the in- 
terior of the church to the chapel in the basement, which thus 
forms one place of divine worship together with the church. As 
to the killing or gravely wounding of a person, Gasparri says 
that the physical and proximate cause of death or injury must 
have occurred in the church. Thus, if the criminal was inside the 
ehurch and shot a man walking outside, the crime really occurred 
outside the church; if the criminal was outside the church and 
shot a man in church, it is immaterial whether the victim dies 
there or elsewhere, for the church is polluted.’® 


RECONCILIATION OF A POLLUTED CHURCH 


1214. It is not lawful to celebrate divine services, administer 
the sacraments, or bury the dead in a violated church before the 
rite of reconciliation has been performed. If the violation of the 
ehurch happens during divine services, these shall stop at once. 
If the violation occurs during Mass, and before the Canon has 
been begun or after the Communion, the Mass shall be stopped at 
once; otherwise the priest shall continue the Mass until the Com- 
munion (Canon 1173). 

A church that has been polluted shall be reconciled as soon as 
possible, with the sacred rites prescribed in the approved 
liturgical books. If the pollution of a church is doubtful, it may 
be reconciled ad cautelam (Canon 1174). A chureh which has 
been polluted by the burial of an excommunicated person or 
infidel shall not be reconciled until after the body of that person 
has been removed, if the removal can be accomplished without 
grave inconvenience (Canon 1175). 

The Canon of the Mass begins with the prayer Te igitur 
The saying of Mass in a polluted church may become necessary, 
but the necessity should not readily be accepted as an excuse, for 
the Code gives very extensive faculties for performing the rite 

26 De SS. Eucharistia, I, n. 250. 


16 A PRACTICAL COMMENTARY 


of reconciliation. It has been officially declared that the saying 
of Mass in a polluted church (e.g., in a ease of necessity) does not 
dispense with the necessity of performing the rite of reconcilia- 
tion.” The removal of the body of a person who died in excom- 
munication pronounced by a competent ecclesiastical court was 
discussed in connection with the offenses which pollute a church 
(cfr. above, n. 1212). 


PERsSoNS WHo HAVE THE PoWER TO RECONCILE A CHURCH 


1215. A church which is blessed can be reconciled by its ree- 
tor, or by any other priest with at least the presumed consent of 
the rector. The reconciliation of a consecrated church is vested 
in either the local Ordinary or the major religious superior of 
exempt clerical organizations, as determined by Canon 1156. In 
case of grave and urgent necessity, however, when the Ordinary 
cannot be approached, the rector of a consecrated church may per- 
form the rite of reconciliation, and notify the Ordinary after- 
wards (Canon 1176). 

The reconciliation of a blessed church may be done with ordi- 
nary holy water. The reconciliation of a consecrated church, 
however, is to be done with holy water specially blessed for that 
purpose with the ceremonies prescribed by the liturgical laws: 
this water may be blessed not only by the bishop, but also by the 
priest who reconciles the church (Canon 1177). 

Canon 1176 abolishes the former law which demanded that, 
to reconcile a blessed church, a priest had to have the faculty 
from the bishop. The rector of a church has now by law the 
right to reconcile a blessed church. In this reconciliation the 
priest must follow the rite prescribed in the Rituale Romanum, 
cap. xxviii: Ritus reconciliandi ecclesiam violatam si nondum 
erat ab episcopo consecrata.’’? The reconciliation of a con- 
secrated church is reserved to the local Ordinary, or, in the ease 
of churches belonging to exempt clerical religious, to their major 
superior. Under the law before the Code, the reconciliation of a 
consecrated church was considered to belong to episcopal orders, 
so that a bishop could not delegate to a priest the power to per- 
form this reconciliation unless he had special faculties for that 
purpose from the Holy See. The Code now changes this law, as 


27 Sacred Congregation of Rites, August 19, 1634; Decreta Auth., n. 611. 


CANONS 1176-1179 17 


is to be coneluded from Canon 1176 (together with Canon 1147), 
and both the bishop and the major religious superior (for the 
respective churches which they have a right to reconcile) may 
delegate a priest. The prayers and ceremonies of reconciliation 
of a consecrated church must be taken from the Ponttficale 
Romanum. 


CHurRcHES Must BE GUARDED AGAINST [RREVERENCE 


1216. All persons concerned must see that such cleanliness is 
maintained in the church as is becoming to the house of God. 
Business transactions and fairs, though held for a pious purpose, 
shall be kept out of church, and in general everything that is not 
in accord with the sanctity of the place (Canon 1178). 

As Canon 1164 forbids the use even of rooms above or below a 
church for purely profane purposes, it is all the more solemnly 
forbidden to use the church itself for secular purposes and un- 
becoming transactions, even though they may be intended to 
promote works of religion or Christian charity. 


CHURCHES HAVE THE RIGHT oF ASYLUM 


1217. The church enjoys the right of asylum, so that any 
fugitive from justice who has fled into it may not, except in a 
case of urgent necessity, be taken out of it without the permis- 
sion of the Ordinary, or at least of the rector of the church 
(Canon 1179). 

From ancient times the Christian emperors honored the 
sacred edifices of the Church by giving them the right of asylum 
which the pagan temples had enjoyed in the Roman Empire. 
Lest the protection which the house of God offers should become 
an encouragement of crime, the right of asylum was declared to 
be forfeited in the case of a number of the more grievous and 
fully deliberate crimes. In his Institutio xl, Pope Benedict XIV 
discusses the right of asylum at length, quoting the Old Testa- 
ment in which God had designated certain cities in the land of 
the Israelites as cities of refuge, and also referring to the 
heathen temples and the statues of emperors that had the right 
of asylum. Finally, he enumerates the crimes by which the right 
of asylum was forfeited, and quotes various documents of former 


18 A PRACTICAL COMMENTARY 


Popes on this matter.2® The Council of Trent *® speaks of the 
immunity of the church as established by the ordinance of God 
and by the laws of the canons. In the United States this right of 
churches is not recognized in the laws of the states. 


Tue TITLE of BASILICA 


1218. The title of basilica cannot be given to any church 
except by apostolic indult or by immemorial custom, and the 
privileges of every basilica shall be also determined from the 
same sources (Canon 1180). 

There are four major basilicas at Rome—the Lateran, the 
Vatican Basilica, St. Mary Major (also called the Liberian 
Basilica), and St. Paul Outside the Walls. These are also called 
the patriarchal basilicas, and are assigned to the four patriarchs 
of the Church: the Lateran to the Pope as the Patriarch of the 
entire Western Church, the Vatican to the Patriarch of Constan- 
tinople, the Liberian to the Patriarch of Antioch, and the 
Basilica of St. Paul to the Patriarch of Alexandria. A few 
churches have been elevated by papal indult to the dignity of 
patriarchal or major basilicas. They are distinguished by a papal 
altar and the Porta Sancta, which latter is opened only in the 
Jubilee Year by a delegate of the Pope. Minor basilicas have 
been frequently created by concession of the Supreme Pontiff, 
and enjoy various concessions with respect to the solemnity of 
sacred functions.*° 


ADMISSION TO CHURCHES Must BE FREE of CHARGE 


1219. Admission to the sacred functions in church must be 
absolutely free of charge, all contrary custom being reproved 
(Canon 1181). 

The very nature of a church or public oratory demands that 
all Catholies are at liberty to enter these places of divine worship, 
unless they are prohibited from entering by ecclesiastical penalty. 
No admission fee should, therefore, be charged. This point has 

28 Opera Omnia Bened. XIV, X, 182. 

29 Sessio XXV, cap. 20, De Reformatione. Pope Pius IX, ‘‘Maultiplices 
inter,’? June 10, 1851, condemned as erroneous the opinion that the 
immunity of the Church and ecclesiastical persons has its origin or founda- 
tion in civil law. Cfr. Gasparri, ‘‘ Fontes Cod. Jur. Can.,’’ IT, 855. 

30 Coronata, ‘‘De Locis et Temporibus Sacris,’’ n. 49. 


CANONS 1180-1181 19 


aroused considerable discussion in the United States, not merely 
since the Code was published but also previously, for the Code 
only states what has at all times been considered as an indis- 
putable principle—namely, that Catholic people have the right 
of free entrance into chureh during the divine services or at any 
other time, unless for safety’s sake the authorities keep the 
church doors locked outside the time of services. Since in 
America the only revenue for the erection and maintenance of 
churches and parochial schools and for the support of the priests, 
is derived from the voluntary offerings of the faithful made at 
the time of the divine services, it had become the practice in many 
parish churches to ask of every adult a small fee (usually ten 
cents) on entering the church. Ushers usually were stationed 
at the doors to receive the offering. There seemed to be nothing 
wrong about this practice, for it took the place of the pew rent, 
and the renting of pews had been recognized as legitimate. Some 
families rented pews, while others did not care to do this but 
preferred to pay the ten cents every Sunday. Nevertheless, 
there are some grounds for objection to this practice. In almost 
every parish there are some extremely poor people, who have not 
a cent to spare, and cannot without great hardship give even a 
small offering. By Encyclical Letters of the Sacred Congrega- 
tion of the Propaganda, August 15, 1869, to all the bishops of 
the United States, it was absolutely forbidden to collect any 
money at the door from those entering to assist at the services.** 
At a later date, the Apostolic Delegate again insisted that the 
practice of demanding or accepting entrance fees at the church 
doors must be stopped.*” 


ADMINISTRATION OF GOODS OF CHURCHES 


1220. Subject to the regulations of Canons 1519-1528, and 
unless the contrary is clear from some special title or legitimate 
custom, the administration of goods intended for the repair and 
decoration of a church and for the conducting of divine services 
in the same church, is vested in the bishop with his chapter in 
the ease of a cathedral church; in the collegiate chapter, if the 
church is a collegiate one; in the rector in the ease of all other 
churches. 


31 Collectanea de Prop. Fide, II, n. 1345, 
82 Kecl. Review, XLV, 592. 


20 A PRACTICAL COMMENTARY 


The offerings made for the benefit of a parish or a mission, 
or of a church located within the territory of a parish or a 
mission, are administered by the pastor or the missionary, unless 
the church has an administration of its own distinct from the 
administration of the parish or mission, or unless a special law 
or legitimate custom rules otherwise. The pastor, missionary, or 
rector of a secular church, whether he be a secular or religious, 
must administer the offerings in aecordance with the regulations 
of the sacred Canons, and render an account of them to the 
local Ordinary, as provided by Canon 1525 (Canon 1182). 

Canon 415 defines the respective rights of the chapter and 
the pastor in the administration of the goods of a cathedral or 
collegiate church, when this is also a parochial church. As to 
the administration rights and duties of a pastor belonging to a 
religious community, Canon 630 must be consulted (cfr. Volume 
I, n. 543). The parish churches, and the mission chapels at- 
tached to some parishes, are the only churches found in the 
United States except churches or chapels attached to religious 
houses: as the latter have their own administration, the local 
pastor cannot interfere except under special circumstances or 
because of special agreements. 

1221. If other persons, whether clerics or laymen, are also 
admitted to participate in the administration of the goods of 
any church, they shall all form an administrative council of the 
chureh together with the ecclesiastical administrator spoken of 
in Canon 1182 (or his delegate), and under his presidency. 
Unless other provisions have been legitimately made, the mem- 
bers of this administrative board are to be nominated by the 
Ordinary or his delegate, and they can be removed by the same 
person for a grave reason (Canon 1183). 

1222. The administrative council of a church (which, in the 

Jnited States, is usually called the board of trustees) must see 
that the church property is properly administered in accordance 
with Canons 1522 and 1523 (which outline their duties), but 
they may not interfere in any way in all those matters which 
pertain to the spiritual office, especially: 

(1) The exercise of worship in the church; 

(2) The time and manner of ringing the church bells, and 
the maintaining of order in church and cemetery ; 

(8) The determination of the manner of taking up collee- 


CANONS 1182-1185 21 


tions, making announcements, and performing other acts per- 
taining in any way to divine worship or to the adornment of 
the church ; 

(4) The arrangement of altars, communion rail, pulpit, 
organ, place for the chureh choir, seats and pews, offering boxes, 
and other things which pertain to the practice of religious 
worship ; 

(5) The admission or rejection of sacred utensils and other 
things destined for use, for the divine service, or for decoration 
in church or sacristy ; 

(6) The writing, arrangement, and custody of parish records 
and other documents which belong to the parochial archives 
(Canon 1184). 

The sacristan, singers, organist, choir boys, sexton, grave 
diggers, and all others serving the church, are appointed, sub- 
ject to, and discharged by the rector alone, without prejudice 
to legitimate customs and agreements and the authority of the 
Ordinary (Canon 1185). 

The Latin term ‘‘fabrica’’ which occurs in Canon 1184 (where 
the Code speaks of the ‘‘consilium fabrice’’) implies the sum 
total of the real and personal property and property rights of 
a church. In the United States the matter of church trustees 
who assist the pastor of a parish in the administration of church 
property is regulated by the Second and Third Councils of 
Baltimore, in which the regulations are almost identical with those 
in the Code, except in a few special points which the Code 
allows to be regulated by special law.** 


PERsons BouNp To KEEP CHURCH IN REPAIR 


1223. Unless there are special legitimate customs or agree- 
ments, or an obligation is placed on some individuals even by 
the civil law, the burden of repairing the cathedral church falls 
successively on the following: (1) on the goods of the church 
(bona fabrice), with the exception of that part of the funds 
which is necessary for conducting divine worship and defraying 
the expenditures of the ordinary administration; (2) on the 


33 Conc. Baltimorense III, cap. IV, De Adituis vel Curatoribus et Con- 
siliarvis laicis, nn. 284-287; and C. Baltimorense II, n. 201, 


92 A PRACTICAL COMMENTARY 


bishop and the canons in proportion to their salaries, but the 
portion necessary for their proper maintenance must not be 
touched; (3) on the people of the diocese, whom however the 
local Ordinary should induce rather by persuasion than by 
coercion to furnish, according to their means, the necessary funds 
(Canon 1186, n. 1). 

The burden of repairing a parish church rests on the fol- 
lowing in the order here given: (1) on the goods of the 
church, subject to the stipulation stated above; (2) on the 
patron of the church; (3) on those who derive some income 
from the church, and they are to be taxed by the Ordinary in 
proportion to their income; (4) on the parishioners, whom the 
Ordinary should rather request than command, as stated above 
(Canon 1186, n. 2). 

These rules shall, with due proportion, be observed also in 
reference to other churches (Canon 1186, n. 3). 

1224. If a church is so dilapidated that it cannot possibly be 
used for divine worship, and if all means to repair it are want- 
ing, the Ordinary may divert it to some decent profane use; the 
obligations with the respective funds (for instance, of founda- 
tion Masses), and the title of the parish, if it is a parochial 
church, shall be transferred to another church by the same 
Ordinary (Canon 1187). 


ol el hl I 


OF ORATORIES 


1225. An oratory is a place destined for divine worship, but 
not with the principal object of ser-ing the faithful at large for 
publie worship. 

An oratory is called: (1) Public, if it has been erected 
mainly for the convenience of a body of men, or even of private 
individuals, but in such a manner that all the faithful have a 
legitimately established right to enter the oratory, at least at 
the time of divine services; 

(2) Semi-public, if it has been erected for the convenience 
of some community or a group of the faithful, who meet there, 
but if not everybody is free to enter it; 

(3) Private or domestic, if it has been erected in a private 


CANONS. 1186-1193 23 


house for the exclusive benefit of some family or of a private 
individual (Canon 1188). 

Even though private, the oratories of Cardinals and of 
bishops, whether residential or titular, have nevertheless all the 
rights and privileges enjoyed by semi-public oratories (Canon 
1189). 

Small chapels erected in a cemetery by private individuals 
or families over their burial place, have the nature of private 
oratories (Canon 1190). 


PUBLIC ORATORIES 


1226. Public oratories are governed by the same laws as 
churches. If, therefore, with the authority of the Ordinary, a 
public oratory has been dedicated permanently to the public 
worship of God by blessing or consecration, as spoken of in 
Canons 1155 and 1156, all sacred functions can take place there 
except those that the laws of the rubrics forbid in oratories 


(Canon 1191). 


SremMI-PuBLIC ORATORIES 


227. Semi-publiec oratories cannot be erected without the 
permission of the Ordinary. The Ordinary shall not give this 
permission before he has inspected, either in person cr through 
another ecclesiastic, the place where the semi-public oratory is 
to be established, and has convinced himself that the place is 
decently equipped for the purpose. Once the permission has 
been granted, the oratory cannot be turned to profane pur- 
poses without the authority of the same Ordinary. In colleges 
and other institutions for the education of youths, in high- 
schools, citadels, barracks of soldiers, prisons, hospices, ete., no 
other minor oratories should be erected besides the principal 
one, unless, in the judgment of the Ordinary, necessity or great 
utility makes their erection advisable (Canon 1192). In refer- 
ence to the reservation of the Blessed Sacrament, see Canon 
1265. 

In semi-publie oratories legitimately erected all sacred func- 
tions can be held except such as the rubrics or the orders of 
the bishop exclude (Canon 1193). 


24 A PRACTICAL COMMENTARY 


PRIVATE ORATORIES 


1228. In private chapels in cemeteries, mentioned in Canon 
1190, the Ordinary may permit habitually the celebration of 
even several Masses. In other private oratories he can allow 
only one Mass, and that only on some extraordinary occasion 
but not habitually, and for a good and reasonable cause. The 
Ordinary shall not give this permission unless he has, as Canon 
1192 demands, inspected the place and found it properly 
adapted for the celebration of Holy Mass (Canon 1194). 

Unless the contrary is expressly stipulated in the indult, 
Mass may be celebrated in private oratories which have been 
erected by indult of the Holy See, after the Ordinary has visited 
and approved of the place as specified in Canon 1192. One Low 
Mass may then be said each day, except on the more solemn feasts 
of the Church, and other ecclesiastical functions shall not be held 
in the oratory. For good reasons other than those for which 
the indult was granted, the Ordinary may allow Mass even on 
the more solemn feasts per modwm actus—which means, not 
habitually, but by way of an exception in particular cases 
(Canon 1195). 

The more solemn feasts referred to in this Canon are those 
mentioned in the Ceremoniale EH piscoporum, lib. II, eap. 34, on 
which the bishop is to celebrate Mass in the cathedral, namely: 
Christmas, Epiphany, Easter, Ascension, Pentecost, St. Joseph, 
Annunciation, Assumption, Sts. Peter and Paul, All Saints, 
Titular, the Anniversary of the Dedication of the cathedral, and 
Holy Thursday. However, a Decree of the Sacred Congregation 
of Rites decided that it is not forbidden to say Mass on these 
days in a private oratory, unless they are holydays of obliga- 
tion.*4 

Domestic oratories may not be consecrated or blessed after 
the manner of churches. Domestic and semi-public oratories 
may either be blessed with the benedictio loci (of the Roman 
Ritual) or not at all, but they must be reserved exclusively for 
divine worship, and may not be used for any domestic purposes 
whatsoever (Canon 1196). 


34 April 10, 1896; Decreta Auth., n. 3896. 


CANONS 1194-1197 25 


TITLE XI 


OF ALTARS 


1229. In the liturgical sense, (1) the term, altare immobile 
sew ficum (immovable or fixed altar), implies the upper table 
together with its supports, which are consecrated with it as a 
whole ; 

(2) the term, altare mobile seu portatile (movable or portable 
altar), implies the stone (usually small in size) which alone is 
consecrated, and which is called ara portatilis or petra sancta 
(sacred stone) ; or also the stone with its support, which, how- 
ever, is not consecrated together with the stone. 

In consecrated churches at least one altar, especially the 
main altar, must be immovable; in blessed churches all the 
altars may be movable (Canon 1197). 

The terminology of the Code differs somewhat from that 
previously employed by the Sacred Congregation of Rites, 
which distinguished three kinds of altars—namely, two kinds 
of fixed altars and the portable altar. To have the whole altar 
consecrated, there must be the large stone slab and its supports 
of stone; to have a fixed altar in the sense in which that term 
is used in some of the liturgical decrees, it suffices that the altar 
be built of any material, but as a permanent fixture, and a 
portable altar stone may be placed on it. Thus, an altar which 
is to have the local indult of the privileged altar must be a 
fixed altar in the sense explained.*° 


STRUCTURE OF IMMOVABLE AND PoRTABLE ALTARS 


1230. The table of an immovable altar, as well as the portable 
altar stone, must consist of a single slab of natural, solid and 
non-friable stone. In the immovable altar the stone table must 
cover the entire altar and must be properly joined to the sup- 
port. The support—or at least the sides or columns on which 
the table rests—must also be of stone. The portable altar stone 
must be sufficiently large to hold the host and the larger part 
of the base of the chalice. In both the immovable altar and 


35Sacred Cong. Indulg.,. Dec. 15, 1841; Collectanea de Prop. Fide, 
I, n. 944. 


26 A PRACTICAL COMMENTARY 


the portable altar there must be, in accordance with the liturgical 
laws, the sepulchre containing the relies of saints and closed with 
a stone cover (Canon 1198). 

The altar stone must be of natural solid stone, and altars 
made of any artificial compositions cannot be consecrated. Sand- 
stone, certain kinds of slate, and other natural stones that 
crumble very easily, cannot serve as altar stones. An immovable 
altar must have a large stone slab covering the entire surface 
of the altar, and that slab must rest on a structure of stone, or, 
if the understructure is of brick or other material, there must 
be in the four corners columns of stone on which the table rests. 
At the consecration the four corners of the stone slab are joined 
with the support by anointing the places where the altar slab 
touches the stone support. It is not necessary that the immoy- 
able altar be in contact with the foundation of the church; such 
an altar may be erected on a wooden floor. The cavity in which 
the relics are to be deposited in an immovable altar is usually 
cut into the center of the top of the stone slab, because this 
affords the easiest access to the cavity in the ceremonies of 
consecration. The cavity may also be constructed in the sup- 
port, either in front, or in the rear, or on top of the support; 
in the last case, the altar slab itself is the cover for the sepul- 
chrum, and therefore, at the consecration, the altar slab cannot 
be placed on the support until after the anointing of the sepul- 
chrum and the depositing of the relics. The relics are to be 
relics of martyrs, usually at least two, but the relics of one 
martyr have been held sufficient for valid consecration. Relics 
of other saints, not martyrs, may be added.*° In portable altar 
stones it is forbidden to cut the cavity for the relics into the 
side or edge of the stone; it must be cut in the top or bottom.*’ 


CONSECRATION OF ALTARS 


1231. To permit the celebration of Mass, the altar must be 
consecrated according to the laws of the liturgy—either as a 
whole in ease of immovable altars, or merely the altar stone in 
ease of portable altars. Besides persons specially privileged, 
every bishop may consecrate portable altars. In the case of 


36 Sacred Cong of Rites, Feb. 16, 1906; Decr. Auth., n. 4181. 
37 Sacred Cong. of Rites, June 13, 1899; Decr. Auth., n. 4032. 


CANONS 1198-1200 27 


immovable altars, the law of Canon 1155 is to be observed (which 
rules that the right of consecrating places is vested in the local 
Ordinary). While the consecration of an immovable altar apart 
from the dedication of the church may take place on any day, it 
is more becoming that it should occur on a Sunday or other 
holyday of obligation (Canon 1199). 

In the faculties given to the bishops of the United States by 
the Sacred Congregation of Rites, the bishops are empowered 
to delegate priests to consecrate immovable and portable altars 
with the formula of the Pontificale Romanum. If possible, eccle- 
siastical dignitaries should be appointed for this purpose. For 
the consecration of portable altars the priest may use the shorter 
form. That form closely resembles the shorter form for the re- 
consecration of a desecrated altar, which was published by the 
Sacred Congregation of Rites, September 9, 1920.** 


DESECRATION OF AN ALTAR 


1232. An immovable altar loses its consecration if the table 
or mensa is separated from its support even for a moment’s 
interval: in this case the Ordinary may allow a priest to re- 
consecrate the altar with the shorter rite and formula. 

Both the immovable altar and the portable altar stone lose 
their consecration: (1) if they are considerably broken, the 
seriousness of the fracture being determined either by its extent 
or by its relation to the place of anointing; (2) if the relics 
are removed, or if the cover of the sepulchre is broken or 
removed, except in cases where either the bishop or his delegate 
remove the cover in order to fasten it more securely or repair 
it, or to substitute another cover, or to inspect the relies. 

A slight fracture of the cover does not induce loss of the 
consecration, and any priest ean fill the crack with cement. The 
desecration of the church does not entail the desecration of the 
immovable or portable altars in the church, or vice versa 
(Canon 1200). 

For the reconsecration of an immovable altar which has lost 
its consecration because the stone slab was momentarily sepa- 
rated from its support, a very short formula was published by 
the Sacred Congregation of Rites, September 9, 1920.°° At the 


88 Acta Ap. Sedis, XII, 450. 
89 Acta Ap. Sedis, XII, 499, 


28 A PRACTICAL COMMENTARY 


same time the Congregation published the shorter formula of 
reconsecrating altars which have lost their consecration by con- 
siderable fracture, or by a break in the cover, or by the removal 
of either the cover or the relics. We referred to this formula 
under the preceding Canon. 


TITLE OF ALTARS 


1233. Just as the church has its title, at least every immov- 
able altar of the church should also have its own title. The 
primary title of the main altar should be the same as the title 
of the church. With the permission of the Ordinary the title 
of a movable altar may be changed, but not that of an immoy- 
able altar. Altars cannot be dedicated to beatified persons— 
not even in the churches and oratories which have the conces- 
sion to say the Office and Mass of the beatws—aunless an indult 
of the Apostolic See has been obtained (Canon 1201). 


PROPER USE or ALTARS 


1234. Immovable as well as portable altars must serve exclu- 
sively for divine services, especially for Holy Mass, and they 
may not be put to any profane use. No bodies are to be 
buried under the altar. If bodies happen to be buried near an 
altar, they must be at least one meter away; otherwise it shall 
not be lawful to say Mass on such altar, until the body has been 
removed (Canon 1202). 

The altar may not be used as a wardrobe for vestments and 
other articles. The Sacred Congregation of Rites declared that 
altars under which there is a vestment case cannot be conse- 
erated.4° In another instance it declared that shelves for choir 
books may be tolerated behind the altar under the steps on 
which the candlesticks stand, but not under the altar table 
itself.*? 


40 December 20, 1890; Decreta Auth., n. 3741. 
41 February 4, 1898; Decreta Auth., n. 3987. 


CANONS 1201-1204 29 


TITLE XII 


OF ECCLESIASTICAL BURIAL 


1235. The bodies of the faithful must be buried, and crema- 
tion is reprobated. If any one has in any manner ordered his 
body to be cremated, it shall be unlawful to execute his wish; 
if this order has been attached to a contract, a last will, or 
any other document, it is to be considered as not added (Canon 
1203). | 

Keclesiastical burial consists in the transfer of the body to 
the church, the funeral services held over the body in church, 
and its interment in the place legitimately appointed for the 
burial of the faithful departed (Canon 1204). 

The great devotion and reverence exhibited by the early 
Christians to the mortal remains of those who had fallen asleep 
in the Lord is too well known to need comment here. The 
religious symbolism in the burial of the bodies of the faithful 
in consecrated ground is much more justified than the symbol- 
ism of freemasonry in the cremation of the bodies of the de- 
ceased. There is a very positive foundation for the symbolism 
of the Christian burial rite. In itself it is a matter of indif- 
ference how the bodies are disposed of after death, but, when 
cremation began to develop into a protest against the Christian 
teaching of the resurrection of the bodies, the Church had to 
insist all the more strongly on its ancient custom of Christian 
burial. The Code unqualifiedly forbids cremation in Canon 
1203; in Canon 1240 it denies Christian burial to those who 
ordered their bodies to be cremated, unless they showed some signs 
of repentance before death; in Canon 2339 excommunication 
not reserved is inflicted ipso facto on those who dare to force 
ecclesiastical funeral services for those who by the law of the 
Church are deprived of ecclesiastical burial; those who of their 
own accord give Catholic funeral services to persons deprived of 
ecclesiastical burial are punished with an interdict ab ingressu 
eccleswe, reserved to the. Ordinary. 

When asked whether it was lawful to join societies which 
have for their purpose the promotion of cremation, and whether 
one could lawfully order one’s own body or the bodies of others 
to be cremated, the Holy Office answered (May 19, 1886) that 


30 A PRACTICAL COMMENTARY 


neither could be done, and that, if there was question of join- 
ing cremation societies affiliated with the freemasons, the pen- 
alties of joining freemasons are incurred.*? In some mission 
districts where Christian missionaries had great difficulty in 
stopping the custom of some of the castes or classes, the Church 
instructed the missionaries to tolerate such custom until such 
time as the missionaries had turned the minds of the natives 
to Christian ideals.** 


CHAPTER I 
OF CEMETERIES 


1236. The bodies of the faithful are to be buried in a cemetery 
which has been blessed according to the rites given in the ap- 
proved liturgical books, either with the solemn or simple blessing, 
by the persons mentioned in Canons 1155-1156. 

No bodies shall be buried in churches except those of resi- 
dential bishops, abbots or prelates nulliws in their own churches, 
or of the Roman Pontiff, royal personages, and Cardinals 
(Canon 1205). 

The simple blessing of cemeteries is contained in the Rituale 
Romanum, cap. xxix. The solemn blessing is to be given accord- 
ing to the Pontificale Romanum (De Cemeteri Benedictione). 

1237. Burial in the churches was not possible under the old 
Roman Law, which forbade burial within the city walls. After 
the Roman Empire had become Christian, the bodies of the 
martyrs were taken from the catacombs to the churches. The 
custom then developed of burying bishops, abbots, saintly priests 
and prominent laymen in church, first in the porticos and near 
the doors of the churches, and later within the church itself. 
The Decretum Gratiani cites a Decree from the Council of Nantes 
(in 658), which forbids burial in the church itself, but allows 
it in the halls (atria), porticos or environs of a chureh.** An- 

42 Collect de Prop. Fide, II, n. 1657. A Decree of the same Holy Office, 
Dec. 15, 1886, rules that if the body of a Catholic is to be cremated not 
by his own will but the will of others, funeral services may be held at his 
home and in the church, but the priest is not to accompany the body to 
the crematory (Collect. de P. F., II, n. 1665). Public Mass may not be 
said for those whose bodies were cremated not without their own guilt in 
the matter; however, Mass may be said privately for them (Holy Office, 
July 27, 1892; Collect. de P. F., II, n. 1808). 


43 Collect, de Prop Fide, II, n. 1626, 
44¢, 15, C. XIII, qu. 2, 


CANONS 1205-1206 31 


other Decree, quoted by Gratian from the Council of Mayence, 
forbids burial in church to all except bishops, abbots, saintly 
priests and notable laymen,*® but subsequently no distinction 
was made between the classes of persons who might or might 
not be buried in church. In fact, the Rituale Romanum indi- 
rectly recognizes the custom of burying the faithful in church: 
it first speaks of burial in cemeteries, and ordains that, where 
the ancient custom exists of burying the faithful in cemeteries, 
it should be retained, and, wherever possible, that custom should 
be restored; if, however, someone is given a burial place in 
church, it shall be only in the ground; bodies may not be buried 
near an altar. The Ritual is being revised at present to cor- 
respond with the Code. 

The question naturally suggests itself here whether the pro- 
hibition of the Code to bury Catholics in churches (with the 
few exceptions made by the Code) is to be understood as ex- 
tending to the interment of bodies in a vault built under the 
floor of a church in the basement, and to a basement chapel 
below the floor of the church. To the question whether the 
burial of the faithful in an underground church is to be con- 
sidered done in church in the sense of Canon 1205, § 2, the com- 
mittee for the Authentic Interpretation of the Code answered? 
‘Yes, if the underground church is truly and properly a church, 
devoted to divine worship.’’ 4° 

1238. The Catholic Church has the right to possess her own 
cemeteries. Wherever this right of the Chureh is violated with- 
out hope of regaining the same, the Ordinaries should take care 
that the cemeteries belonging to the state are blessed, if those 
who are usually buried there are for the greater part Catholics, 
or at least that the Catholics may have a part of the cemetery 
reserved for themselves, which part is to be blessed. If not even 
this concession can be obtained, the individual graves should be 
blessed according to the rites in the approved liturgical books 
as often as the body of a Catholic is buried (Canon 1206). 

In the United States the Catholic Church has no difficulty in 
acquiring and maintaining its own cemeteries, as there is no 
interference on the part of the states in thig matter. Any pri- 
vate corporation, whether connected with a church or merely a 


aS lS eC RLU ce 2: 
46 October 16, 1919; Acta Ap. Sedis, XI, 478. 


32 A PRACTICAL COMMENTARY 


business corporation, may own and manage cemeteries. The 
First Plenary Council of Baltimore was very severe in demand- 
ing that the pastor should refuse Catholic funeral services for 
a Catholic who was to be buried in a cemetery owned by a 
non-Catholic sect or by a secular corporation, if there was a 
Catholic cemetery in the place. The Second and Third Coun- 
cils of Baltimore modify the prohibition of the First Plenary 
Council, stating that the rule had worked undue hardships in 
the eases of converts to the faith whose families had a family 
burial plot in some non-Catholic cemetery, and upon Catholics 
who had bought a burial plot in non-Catholic cemeteries before 
1853 (the year in which the rule of the First Plenary Council 
was made), and finally upon Catholics who after that year had 
bought the burial plot in such cemeteries in good faith. In 
these cases, therefore, funeral services may be held in the house 
and in the church, and the individual graves are to be blessed.*” 

The laws of the Canons concerning the interdiction, violation, 
and reconciliation of churches, are to be applied also to ceme- 
terics (Canon 1207). 


Every Paris to HAvE Irs OWN CEMETERY 


1239. Every parish should have its own cemetery, unless the 
local Ordinary has legitimately designated one common ceme- 
tery for several parishes. 

The exempt religious may have a cemetery of their own, 
distinct from the common cemetery. Other moral personages 
and private families may be also permitted by the local Ordi- 
nary to have a special burial place, apart from the common 
cemetery, which place is to be blessed like the cemetery (Canon 
1208). | 

In parochial cemeteries with the written permission of the 
local Ordinary or his delegate, and in the proper cemetery of 
some other ecclesiastical body with the written permission of 
its superior, the faithful may construct for themselves and their 
families special burial places, and may also, with the consent 
of the same Ordinary or superior, convey these to others. 


47 Conc. Balt. II, nn.391-392; Cone. Balt. III, nn. 317-319; Eccl. Review, 
LX (1919), 82. 


CANONS 1207-1212 30 


Wherever possible, the graves of priests and other clerics should 
be separated from those of the laity in a place more becoming 
to their station; moreover, where it can be conveniently ar- 
ranged, one place should in this space be set apart for priests, 
and another for inferior ministers of the Church. The bodies 
of infants should likewise be buried in a plot specially set apart 
for them, if it can be conveniently arranged (Canon 1209). 

In towns and cities where the price of land within easy 
reach from the city is very high, it is not practicable to have a 
separate cemetery for each parish, and the Code makes allow- 
ance for such conditions. In the United States, the cemetery 
is held by the church corporation, and is managed and con- 
trolled like private property. Just as one may sell property 
subject to certain restrictions, the lots (or individual graves) 
of a cemetery are sold subject to the cemetery rules, which 
every diocese in the United States doubtless has, and inserts in 
the contract of sale. It has been always understood that the 
pastor (or other priest in charge of a cemetery, or sometimes 
a layman appointed for that purpose) is delegated by the bishop 
to sell lots.*® 


CARE AND MANAGEMENT OF CEMETERIES 


1241. Every cemetery should be suitably enclosed on all 
sides and carefully guarded (Canon 1210). The local Ordi- 
naries, pastors, and superiors concerned shall see that the ceme- 
teries shall contain no epitaphs, eulogistic inscriptions, and 
ornaments, which are discordant with Catholic faith and piety 
(Canon 1211). Besides the blessed cemetery there should be, if 
possible, a separate well-enclosed and guarded place for the inter- 
ment of those to whom ecclesiastical burial is denied (Canon 
1212). 

Since, according to the American law, the owners of lots 
have not an absolute right to use this property as they please, 
it is not difficult in the United States to bar from the cemetery 
whatever is unbecoming or objectionable from the point of view 
of the Church. The reverence due to the faithful departed and 

48 Interesting points in reference to the civil law of the United States 
on cemeteries held by ecclesiastical corporations can be found in Zollmann’s 


‘* American Civil Church Law,’’ Chapter XVI, Church Cemeteries, pp. 433- 
443 (ed. 1917, Columbia University, New York). 


34 A PRACTICAL COMMENTARY 


to a Catholic cemetery demands that the pastor in charge 
should take loving care of the hallowed place. Frequently, the 
proceeds from the sale of the lots are insufficient, and the 
parish is too poor to pay a sufficient number of workingmen to 
keep the cemetery in the most perfect condition, but there can 
be no excuse for failure to keep it at least respectable. The Third 
Council of Baltimore states that pastors have a real obligation 
to see that the cemetery is in good condition, so that the faithful 
may not have just reason for complaint regarding its untidy 
and neglected appearance, and for objecting to be buried there.*° 
The Second Council of Baltimore commands that the money 
derived from the sale of lots shall be used for the upkeep of 
the cemetery; if there be any surplus, this shall be used for 
religious and charitable purposes as the Ordinary may direct.°° 

1242. No body shall be buried (especially in cases of sudden 
death) until after a proper and sufficient time has elapsed to 
remove all doubt of actual death (Canon 1213). 

In civilized countries the civil law usually determines the 
length of time that must elapse between the death of a person 
and the burial. Medical men seem to agree that there is no 
absolutely certain sign of death except putrefraction. It is 
said that the procedure of embalming bodies (which is almost 
universal in the United States) makes certain that persons are 
not buried alive; but one must not call the undertaker until it 
is from all appearances certain that the person 1s actually dead.** 


EXHUMATION OF BODIES 


1243. Without the permission of the Ordinary it is not lawful 
to exhume a body which has been assigned by the Chureh its 
final resting place anywhere. The Ordinary shall not allow the 
exhumation of a body, unless it can with certainty be distin- 
euished from other bodies (Canon 1214). 

The civil laws of the various civilized countries have regula- 
tions concerning the exhumation of bodies; sometimes, the court 
orders it for the sake of an autopsy to determine the precise 
cause of death. If private individuals desire to raise or transfer 
a body, it is usually not sufficient to get the authorization of the 

49 Cone. Balt. IIT, n. 319. 


50 Cone. Balt. II, n. 393. 
51 Antonelli, ‘‘ Medicina pastoralis,’’ I{, nn. 922-978. 


CANONS 1213-1217 39 


bishop, for the laws of most states require a permit from some 
specified health officer. 


CHAPTER II 


OF THE TRANSFER OF THE BODY TO THE CHURCH, FUNERAL 
SERVICES AND INTERMENT 


1244. Unless a serious cause prevents it, the bodies of the 
faithful are to be brought to the church before burial, and the 
funeral services are to be held there according to the rites 
prescribed in the approved liturgical books (Canon 1215). The 
church to which the body is to be taken is by ordinary law the 
proper parish church of the deceased, unless the deceased has 
legitimately chosen another church for his funeral. If the 
deceased had several proper parishes, the funeral services should 
be held in the church of the parish in which he died (Canon 
1216). Ina doubtful case as to the right of another church, the 
right of the proper parish church of the deceased must always 
prevail (Canon 1217). 

The Code summarizes the former extensive legislation on 
funeral rights. First, it treats of the church which is entitled 
to conduct the funeral services, supposing that the deceased did 
not designate a church. This so-called sepultura electiva is regu- 
lated in detail by Canons 1223-1228. Where the parishes have 
well-defined territorial boundaries, the above-mentioned Canons 
clearly indicate what parish has the right to the funeral. By 
domicile and by quasi-domicile a proper parish is acquired. The 
cases in which a person dies outside his own proper parish are 
considered in the succeeding Canons of this chapter (viz., Canons 
1218-1222). In places where the parishes are determined by 
the language of the people (as is the case with many parishes 
in the United States), it is more difficult to determine the proper 
parish of the deceased. Since this is an unusual condition, not 
contemplated by the Code, the particular law has to be con- 
sulted—namely, the Plenary Councils of the respective countries 
and the diocesan statutes—to ascertain who is a member of a 
_ language parish. 


36 A PRACTICAL COMMENTARY 


BurIAL OF PERSON DYING OUTSIDE His OWN PARISH 


1245. If a person dies outside his own parish, the body is to 
be brought to his nearest proper parish church for the funeral 
services, supposing that the funeral procession can be made on 
foot without inconvenience ; otherwise to the church of the parish 
in which he died. 

After investigating its peculiar circumstances, every Ordi- 
nary may determine for his territory the distance and other con- 
ditions which render it inconvenient to transfer the body to the 
proper parish or place of burial. If the parish in which one 
dies and the proper parish of the deceased are in different dio- 
ceses, the rules concerning the transfer of the-body made by the 
Ordinary of the diocese in which the person died are to govern. 

Even though the transfer of the body to the church where 
the funeral should be held (the proper parish of the deceased or 
the church he chose for his funeral) or to the burial place is 
inconvenient, the family, heirs, and others concerned shall always 
have the right to transfer the body thither upon assuming the 
expenses of the transfer (Canon 1218). 

1246. If a Cardinal dies in the City of Rome, the body is to 
be transferred for the funeral services to that church which the 
Roman Pontiff shall appoint; if he dies outside the City, he is to 
be buried from the most prominent church in the city or place of 
his death, unless he has chosen another church for his funeral. 
The funeral of a residential bishop (even though he be a Car- 
dinal), or of an abbot or a prelate nullius, is to take place in his 
own cathedral, abbatial or prelatial church, if that can be con- 
veniently done; otherwise, the body is to be taken to the most 
prominent church in the city or place where he died. In either 
case, if the deceased has chosen a church for his funeral, the 
body should be transferred to that church (Canon 1219). 

1247. Residential beneficiaries are to be transferred to the 
church where they held the benefice, unless they have chosen 
another church for their funeral (Canon 1220). 

1248. In ease of death outside the religious house, professed 
religious and novices are to be transferred to the church or ora- 
tory of their house, or at least to some house of their organiza- 
tion, unless novices have chosen another church for their funeral. 
Their religious superior has always the right to conduct the 


CANONS 1218-1222 37 


funeral procession from the place where the religious died to the 
church where the funeral services are to take place. If a re- 
ligious dies far away from home, and his body cannot con- 
veniently be taken to his own house or any house of his organiza- 
tion, he is to be buried from the church of the parish where he 
died, unless, in the case of a novice, he has chosen another chureh 
for his funeral. The religious superior, however, has the right 
spoken of in the third paragraph of Canon 1218, to transfer the 
body, if he so wishes, from any place to a church of his organiza- 
tion. The rules of this Canon in reference to the novices apply 
also to servants in the actual service of a religious community, 
who live steadily within the precincts of the religious house; if, 
however, they dic outside the religious house, they are to be 
buried according to the rules of Canons 1216-1218 (Canon 1221). 

This Canon deals only with the question of the church from 
which the funeral is to be held. Canon 1230 specifies who has 
the right to hold the funeral services over a deceased religious. 
The servants in religious houses who die within the precinets of 
the religious house are treated like the novices, unless they 
have chosen a special church for their funeral; if they die out- 
side the religious house, they come under the common rules for 
the burial of the faithful.” 

1249. Persons who have stayed in a religious house (even of 
regulars) or a college, either as guests or for the purpose of 
education or health, and persons who have died in a hospital, 
are to be buried according to the regulations of Canons 1216= © 
1218, unless the particular law or a privilege allows an excep- 
tion. Those who die in a seminary are to be buried according to 
the regulations of Canon 1368 (Canon 1222). 

An exception is made here from the rule of Canon 6 that 
particular laws contrary to the Code are revoked. In the matter 
of the burial rights of the persons mentioned in Canon 1222, the 
particular law and privileges are given preference. In speaking 
of inmates of a seminary, the Code says ‘‘those who die in the 
seminary.’’ It thus makes no explicit provision for seminarians 
and other persons who regularly live in the seminary but die 
outside the same. Wherefore, the general rule that one must be 
buried from one’s own proper parish church, unless one had 


52 Rossi, ‘‘ La sepultura ecclesiastica,’’ n. 55, p. 102. 


38 A PRACTICAL COMMENTARY 


legitimately chosen a funeral church, must be applied also in this 
case. 


CHOICE oF BURIAL CHURCH AND CEMETERY 


1250. Unless they are explicitly forbidden by law, all the 
faithful may choose a church for their funeral, as well as a 
cemetery for their burial. In this free choice of church or 
cemetery wives, as also children who have reached the age of 
puberty, are entirely independent of the authority of husband 
and father (Canon 1223). 

The free choice of a church or a cemetery for their funeral 
is forbidden to the following: (1) to children who have not 
reached the age of puberty, but the parents or guardians may 
even after the death of these children make the choice; (2) to 
professed religious of any rank or dignity, unless they are 
bishops (Canon 1224). 

The free choice of the funeral church and of the place of 
burial is well protected by the laws of the Decretals,°* and the 
Code substantially retains the former law on this point. For the 
impuberes the father, or (if he is dead or does not act) the 
mother, or (if the children are entrusted to such) the legal 
guardian, may choose the church for the funeral and the burial- 
place. In the former law canonists seem to have agreed that the 
choice had to be made while the children were living, but the 
Code explicitly allows such choice even after their death. By 
the term ‘‘parentes,’’? one must very likely understand father 
and mother exclusively—not grandfather or grandmother, to 
whom the term is extended in Canon 542, § 2—hbecause the for- 
mer law was very strict in its use of the term in this matter. To 
the question whether the mother can choose the burial church 
for an infant, a decision of the Sacred Congregation of the 
Council answered that she cannot, unless a legitimate custom 
gives her that right.°* Another decision of the same Congrega- 
tion declared that parents and guardians—not other relations or 
heirs—could choose the funeral chureh and burial place for in- 
fants.°> Religious who have taken vows (temporary or perpetual, 





58 Decretal. Greg. IX, e. 1, De Sepulturis, lib. ITI, tit. 28. 
54 Conc. I'rident. (ed. Richter), p. 461. 
55 Rossi, ‘‘La sepultura ecclesiastica,’’? n. 58. p. 112. 


CANONS 1223-1228 39 


simple or solemn) in a religious organization, are deprived of 
the right to choose the church and cemetery for their burial. 

1251. For validity, the choice of a funeral church must fall 
on either a parish church, or a church of regulars, or another 
church having the right to hold funerals: however, a patron of a 
church (a person who has built or endowed a church) may choose 
that church, even though otherwise it is not entitled to have 
funeral services. In churches attached to convents of nuns (Sis- 
ters with solemn vows) funeral services cannot be held for out- 
siders, but women who lived permanently, not accidentally, 
within the enclosure, either as servants, or for reason of educa- 
tion or sickness, or as guests, may choose the church of the nuns 
as their funeral church (Canon 1225). 

1252. The funeral church or cemetery may be chosen by a 
person either directly or through another by legitimate mandate ; 
the fact that a choice has been made, or the mandate given, may 
be proved in any legitimate manner. If the choice is made 
through another, that person may make the choice even after 
the death of the person who issued the mandate (Canon 1226). 

1253. Religious and the secular clergy are strictly forbidden 
to induce any person to vow, or swear, or otherwise promise, with 
or without an oath, to choose their church or cemetery for the 
funeral or burial, or not to change a choice already made. If 
the law of this Canon should be violated, the choice is null and 
void (Canon 1227). 

1254. If the deceased chose some cemetery other than that of 
his proper parish, he shall be buried there, provided there is no 
objection on the part of those in charge of such cemetery. lhe 
the cemetery of a religious organization was chosen, the consent 
of the superior entitled by the constitutions to grant such permis- 
sion is required and suffices for the burial (Canon 1228). 

The faithful may choose a church for their funeral services, 
and they may also choose a cemetery for their burial, even though 
this is not connected with the church chosen for the funeral rites. 
As to the cemetery which may be chosen, Canon 1208 must be 
considered. Parish churches and the houses of exempt religious 
have by law the right to have their own cemeteries. The bishop 
may allow other religious organizations, confraternities, or 
societies, and even private families, to have their own places of 
burial. Any cemetery that is legitimately established, may be 


40 A PRACTICAL COMMENTARY 


chosen by the faithful as their burial place, provided the persons 
in charge can and do permit the burial. If they refuse, the 
deceased is entitled to be buried in the cemetery of the church 
which had the funeral, according to Canon 1231. Hence, one 
must conelude that if the deceased has (as allowed by Canon 
1225) chosen a church of a regular Order (ie., an Order of 
men with solemn vows), and has also chosen their cemetery as 
the place of burial, the regulars may not take the funeral if they 
do not wish to bury the person in their cemetery. Though the 
exempt religious may have their own cemetery, and though the 
right of the faithful to choose a cemetery is not limited by the 
Code (if the religious according to their constitutions can and are 
willing to accept the choice), the right of the faithful to choose a 
church for the funeral services is limited by Canon 1225 to 
parochial churches and to churches of regular Orders.°® The 
choice of a cemetery is regulated by Canon 1228. 


Famity BurRIAL PLACES 


1255. If a person, who has a family burial place in some ceme- 
tery, dies without having chosen a burial place elsewhere, he is to 
be buried with his ancestors if his body can be conveniently trans- 
ferred to that place, or, regardless of the inconvenience, if his 
family or heirs are willing to defray the expenses of the transfer. 
The wife shares the burial place of her husband, or, if she had 
been married several times, of her last husband. If the family 
or husband has several burial places, the family or heirs of the 
deceased shall select the place of burial (Canon 1229). 

The natural desire to be buried with one’s relations is 
respected by the Church, and she gives preference to the ances- 
tral burial place or plot, unless the deceased has expressed a 
desire to be buried elsewhere. It is very common here in the 
United States to have family plots in cemeteries, and, as we saw, 
the Church allows the acquisition of such burial lots by indi- 
viduals and families with the consent of the local Ordinary in 
the case of diocesan cemeteries, and the consent of the religious 
superior in the case of cemeteries of exempt religious. But the 
right to hold the funeral services is one thing, and the question 
of the burial place is another. The fact that one has a family 


56 Blat, ‘‘Commentarium,’’ lib, III, n. 83. 


CANONS 1229-1230 41 


plot in a parish cemetery, does not imply the right of that parish 
to the funeral, for the person may freely choose a church for 
the funeral. If the person has moved from the parish where he 
has the ancestral burial plot, the funeral is to be held at the 
proper parish church (place of domicile or quasi-domicile), un- 
less the person has chosen another church for his funeral. 


RULES ABOUT FUNERAL SERVICES 


1256. The proper pastor of the deceased has not only the 
right but also the duty, except in case of grave necessity, to escort 
the body from the house to his parish church and to conduct the 
funeral services, unless (as Canon 1216 allows) the person has 
chosen another church for the funeral. If the person has died in 
the territory of another parish and the body can be easily taken 
to the deceased person’s own parish church, the proper pastor 
of the deceased may enter the territory of this other pastor after 
notifying him of the fact, and conduct the funeral procession to 
his church and hold the exequies (Canon 1230, §§ 1-2). 

If the funeral is to take place in a church of regulars, or 
another church exempt from the jurisdiction of the pastor, the 
proper pastor has the right to conduct the body from the house 
to the church where the funeral services are to take place, under 
the cross of the church which has the funeral, but the rector of 
the church has the right to perform the funeral services. If, 
however, the church which has the funeral is not exempt from 
the jurisdiction of the pastor, the celebration of the funeral 
services does not belong to the rector of the church, unless he has 
that right by special privilege, but to the pastor in whose terri- 
tory the church is situated, provided the deceased was a subject 
of the pastor (Canon 1230, §§ 3-4). 

1257. The bodies of religious women and of their novices who 
die in the convent, are carried by the Sisters to the limit of the 
enclosure; thence, if the deceased belonged to a body of religious 
who are not subject to the jurisdiction of the pastor, the chaplain 
of the convent conducts the body to the proper church or oratory 
of the convent, and holds the funeral services. In the case of 
other religious women (not exempt from the jurisdiction of the 
pastor), the pastor conducts the body to his parish church, and 
holds the funeral services, as was stated in the first paragraph 


42 A PRACTICAL COMMENTARY 


of this Canon. Concerning Sisters who die outside their convent, 
the general laws of the Canons are to be followed (Canon 
1230, § 5). 

1258. If a Cardinal, or a bishop, dies outside of Rome in a 
city where there is a bishop’s see, the precept of Canon 397, n. 3, 
must be observed (Canon 1230, § 6). 

1259. If the body is sent to a place where the deceased did 
not have his proper parish, and where he has not legitimately 
chosen a church for his funeral, the right to conduct the body to 
church and hold the funeral services (if they are to be held in 
that place) and to accompany the body to the burial place belongs 
to the cathedral church, or, where there is no cathedral church, 
to the pastor of the church to which the cemetery of interment 
belongs, unless local custom or the diocesan statutes ordain 
otherwise (Canon 1230, § 7). 


THe INTERMENT 


1260. On the termination of the funeral services in the 
ehurch, the body is to be interred in the cemetery of the same 
church with the ceremonies prescribed by the liturgical books, 
unless the body is to be taken to some other cemetery in accord- 
ance with Canons 1228 and 1229. The priest who conducts the 
funeral services in church, has not only the right but also the 
duty (except in cases of grave necessity) to accompany, either 
in person or through another priest, the body to the burial place 
(Canon 1231). 

In the United States it has been the practice in many places 
for the priest to finish the funeral rites in the church and not to 
escort the body to the cemetery. It is rather a cold and un- 
christian conclusion to the beautiful and consoling funeral rites 
of the Church, when the interment is left to the undertaker, and 
there is no priest at the grave to say the final prayer as the body 
is laid to rest. As the funeral director usually employs automo- 
biles to convey body and mourners to the cemetery, it does not 
take much time to-day to go to the cemetery, even if it is some 
distance outside the city or town. There is, therefore, in many 
instances no real necessity to excuse the priest from accompany- 
ing the body. There may be a long-standing custom in a diocese 
contrary to this rule of the Code, and the Ordinary perhaps may 


CANONS 1230-1233 43 


allow this to continue (in virtue of Canon 5), but the practice of 
some parishes where the priest goes to the cemetery if the de- 
ceased was a pew holder, and does not escort other deceased 
parishioners, does not seem reasonable, because, if a person is 
entitled to ecclesiastical burial, he is entitled also to the last part 
of the burial service.*” In a case in which a certain bishop had 
forbidden pastors and other priests of a city to accompany the 
body to the public cemetery because of the distance and incon- 
venience, and because there was a chaplain appointed for the 
cemetery, the Sacred Congregation of the Council condemned 
this prohibition, and declared that pastors are bound by law to 
accompany the bodies of their parishioners to the cemetery, and 
they must do so even in case of the poor who cannot pay for the 
funeral services.*® 

1261. The priest who conducts the funeral procession to the 
church or to the cemetery, has the right to pass freely through the 
territory of another parish or diocese with stole and upright pro- 
cessional cross, even without the permission of the pastor or the 
Ordinary. If the body is to be buried in a distant cemetery to 
which the body eannot conveniently be carried, the pastor or 
rector of the church at which the funeral services are conducted 
cannot claim the right to accompany the body outside the limits 
of the city or town (Canon 1232). 

1262. Without a just and grave reason approved by the 
Ordinary, the pastor cannot prevent secular clerics, religious, 
and pious societies, who have been invited by the family or the 
heirs, from accompanying the body to the church and to the 
burial place, and from assisting at the funeral services. How- 
ever, the clergy of the church where the funeral services are held 
should be invited by the family or the heirs in preference to all 
others. Societies and emblems clearly hostile to the Catholic 
religion shall never be permitted at the funeral. Those who 
assist at the funeral procession must respect the orders of the 
pastor in the arrangement of the procession, subject to each one’s 
right of precedence. No matter what dignity he has held or 
to what family he has belonged, the body of a lay person shall 
never be carried by the clergy (Canon 1233). 


57 Augustine, ‘‘Commentary,’’ VI, 140; Eccl. Review, LXVII (July, 
1922), 12. 
58 January 26, 1907; Acta S. Sedis, XL, 156, 


44 A PRACTICAL COMMENTARY 


Referring to the admission into church of flags, banners, and 
other such emblems on the occasion of a funeral, or any other 
liturgical functions, the Sacred Congregation of Rites recently 
declared that, if they do not belong to a society which is openly 
contrary to the Catholic faith or to a society whose statutes have 
been condemned by the Church, and if these flags, banners, or 
emblems do not in themselves portray something forbidden or 
condemned by the Church, they may be admitted into the church 
edifice. If a blessing is asked for these flags or emblems out of 
respect for the Church and in a quiet and peaceful manner, they 
may be blessed according to the formula of the Ritwale Ro- 
manum.°® This Decree or Instruction reverses a former Decree 
of the same Congregation, which forbade the admission into 
ehureh at liturgical functions of national flags or of any 
other except religious banners. There is a formula for blessing 
religious banners in the Ritwale Romanum.®° 


FUNERAL FEES 


1263. Where such does not already exist, local Ordinaries 
shall draw up for their territory a schedule of funeral taxes or 
offerings, giving due consideration to the legitimate particular 
customs and all the special circumstances of persons and places. 
They shall consult the Cathedral Chapter (or diocesan con- 
sultors) in making these regulations, and, if they think it advis- 
able, they may also consult the vicars-forane (deans) and the 
pastors of the episcopal city. The schedule of taxes should for the 
various eases determine the fees, which must be moderate and fixed 
in such a manner that all occasion for contention and scandal is 
removed and the rights of all concerned are well defined. If 
several classes of funeral are enumerated in the schedule, the 
party who arranges for the funeral has the right to choose freely 
between them (Canon 1234). 

Every one is strictly forbidden to exact more than the dio- 
eesan schedule allows for burial or funeral services or for anni- 
versaries. The poor shall be given decent funeral and burial 
services absolutely free of charge, according to the laws of the 


59 December 15, 1922, published March 26, 1924; Acta Ap. Sedis, 
AViseLT A. 


60 July 14, 1887; Decreta Auth., n. 3679. 


CANONS 1234-1237 45 


liturgy and the regulations of the diocesan statutes (Canon 
1235). 


THE Proper Pastor’s SHARE OF FUNERAL OFFERINGS, WHEN 
FUNERAL Is HELD IN ANOTHER CHURCH 


1264. Whenever one of the faithful is not buried from his 
own parish church, his proper pastor is to receive the parochial 
portion of the funeral offerings, unless the particular law ordains 
otherwise, or unless the deceased cannot conveniently be brought 
to his proper parish. If the deceased had several proper parishes 
to any of which the body could have easily been conveyed, and 
the funeral is held elsewhere, the parochial portion is to be di- 
vided among the various proper pastors (Canon 1236). 

1265. The parochial portion is to be taken from the entire 
offerings fixed by the diocesan tariff for the funeral services and 
for the burial, and from these fees only. If for any reason only 
minor functions are held on the day of burial, and the first 
solemn service for the deceased is held within a month from the 
day of burial, the parochial portion shall be deducted also from 
the fees given for the delayed funeral services. The share of the 
parochial portion is to be fixed by the diocesan schedule; if the 
parochial church of the deceased and the funeral church belong 
to two different dioceses, the share of the parochial portion is to 
be reckoned according to the schedule of the diocese where the 
funeral takes place (Canon 1237). 

In the United States the people hardly know of their right 
to choose a church for their funeral, and for this reason it is a 
rare occurrence for persons to be buried from any other but their 
own parish church. In view of the circumstances of many lan- 
guage parishes in cities and towns, it may be difficult to decide 
which is a person’s proper parish. In the former law, when a 
person had chosen another church for burial, the proper pastor’s 
share of the funeral offerings was one quarter (quarta funera- 
lium). There is extensive legislation on this point, as one can 
see from Cardinal Gasparri’s notes to the Code. The Code does 
not determine the share due to the ‘proper pastor, but wants the 
individual Ordinaries to fix the amount, along with the list of 
funeral charges. Even in the former law the share was by no 
means the same everywhere; customs favorable to the proper 


46 A PRACTICAL COMMENTARY 


pastor were approved under the former law, and thus it came to 
pass that in some places the portion of the proper pastor was 
one-third, or even one-half of the funeral offerings.“ The Orders 
of Friars Minor, Friars Preachers, Carmelites, and (by communi- 
cation of privileges) other Mendicant Orders also, are (except in 
their houses in Italy and its adjacent islands) exempted from the 
paying of the parochial portion. The Council of Trent did not 
abolish the privilege, but ordained that, in places where by cus- 
tom the houses of these religious had for the forty years prior 
to this Decree of the Council paid the parochial portion, they 
were to continue paying it.®? 


REGISTRATION OF DEATHS 


1266. After the funeral, the minister shall mark down in the 
death register the name and age of the deceased, the names of 
the parents or spouse, the date of death, the priest who adminis- 
tered the last sacraments and what sacraments were given, and 
also the time and place of interment (Canon 1238). 

The term ‘‘minister’’ in this Canon is very vague so that it 
is difficult to know which priest has the obligation to record the 
deaths. Canon 470 obliges the pastors to keep the various parish 
records, including the liber defunctorum. The Rituale Ro- 
manum, eap. li, tit. 10, enumerates the records which every pastor 
must keep, and, when it mentions the death register, it adds that 
this book must be kept also in all other churches from which the 
dead are buried. It seems that the church which holds the 
funeral services is obliged to keep the record of persons buried 
from that church. If a person is not buried from his own parish 
church, but at the time of his death belonged to a parish by rea- 
son of domicile or quasi-domicile, it is to be reeommended that the 
proper pastor be informed of the death, since he is supposed to 
have such record of his parishioners; the Code, however, does not 
explicitly impose on the church which buries the subject of 
another parish this duty of informing the proper pastor. 


61 Bull ‘‘Romanus Pontifex’’ of Pope Benedict XIII, April 28, 1725; 
Gasparri, ‘‘ Fontes Cod. Jur. Can.,’’ I, 609. 

62 Sessio XXV, cap. 13, De Reform.—Cfr. Lyszezarezyk, ‘‘ Compendium 
Priyil. Regular.,’’ 188, 


CANONS 1238-1240 3 47 


CHAPTER IIT 


OF THE PERSONS TO WHOM ECCLESIASTICAL BURIAL IS TO 
BE GRANTED OR DENIED 


1267. Unbaptized persons may not receive ecclesiastical 
burial, with the exception of catechumens who, through no fault 
of theirs, die without having received baptism, and are therefore 
to be regarded as among those baptized. All baptized persons 
must be given ecclesiastical burial, unless they are expressly de- 
prived of it by law (Canon 1239). 

The Code states that no unbaptized persons may receive 
ecclesiastical burial, except only catechumens under certain con- 
ditions. Wherefore, as we said above when speaking of the 
desecration of a church or a cemetery by the burial of unbaptized 
persons, if infants of Catholic parents die without baptism they 
may not be buried in a blessed cemetery. 


Persons WuHo ARE TO Be DENIED ECCLESIASTICAL BURIAL 


1268. The following persons are deprived of ecclesiastical 
burial, unless they have before death given some signs of re- 
pentance: 

(1) Notorious apostates from the Christian faith, notorious 
adherents of an heretical or schismatical sect, or of the Masonic 
Order or other societies of the same kind; 

(2) Persons excommunicated or interdicted by condemnatory 
or declaratory sentence ; 

(3) Person guilty of deliberate suicide; 

(4) Persons who died in a duel or from wounds received 
in” it; 

(5) Persons who have given orders for the cremation of their 
bodies ; 

(6) Other public and manifest sinners. 

When any doubt arises in the foregoing cases, the Ordinary 
shall be consulted if time permits; if the case remains doubtful, 
ecclesiastical burial shall be granted but in such manner that 
scandal is avoided (Canon 1240). 

In the first and second cases the Code makes it plain that 
notoriety or public knowledge is required—in the first case it is 
notoriety of fact, and in the second notoriety of law. In the 


48 A PRACTICAL COMMENTARY 


case of suicide, a duel, and an order to cremate one’s own body, 
the Code does not state that the offense must be publicly known ; 
nevertheless, n. 6 seems to indicate that these offenses must be 
notorious before one is deprived of ecclesiastical burial. Besides, 
Canon 2232 lays down as a general principle that any penalty 
inflicted by the law itself does not oblige the person to undergo 
the penalty, unless the offense is notorious; if it is not notorious, 
the penalty cannot be urged except after a declaratory sentence 
of the competent authority. With reference to violations of the 
precepts of Canon 1240, cfr. Canons 2272 and 2339. 

1269. When ecclesiastical burial has been denied a person, it 
is also forbidden to celebrate for this person any funeral Mass, 
or anniversary Mass, or any other public funeral services (Canon 
1241). 

Since the penalty of refusal of ecclesiastical burial is so severe 
—forbidding not only the transfer of the body to church and its 
interment in the sacred place, but also any prayers or sacred 
burial rites—the priest must refuse burial only when the ease is, 
beyond a reasonable doubt, one of those six fixed by Canon 1240. 
If any reasonable doubt exists as to the culpability of the person, 
or about the sufficient publicity of his offense, or any other ma- 
terial point, the pastor is ordered by the Code to consult his Ordi- 
nary, if time permits. Ifthe pastor cannot consult the Ordinary, 
the words of the Second Council of Baltimore apply: ‘‘In doubt, 
let the Ordinary be consulted if possible; otherwise let judgment 
lean to leniency and mercy. This we especially counsel whenever 
the deceased, having been overtaken by a sudden death, had no 
time for repentance: since, according to the norm of law, odia 
restringenda sunt.’’ 

1270. If feasible without serious inconvenience, the body of 
an excommunicatus vitandus, that had in violation of the laws 
of the Canons been buried in a sacred place, is to be exhumed and 
interred in that part of the cemetery which, according to Canon 
1212, is not blessed. Canon 1214, which demands the permission 
of the Ordinary for the exhumation of any body, must be ob- 
served (Canon 1242). 

Many formalities are required to render a person an ex- 
communicatus vitandus—namely, excommunication by name pro- 
nounced by the Holy See, public announcement of the excom- 


63 Acta et Decreta C. Balt. II, n. 389. 


CANONS 1241-1244 49 


munication, and special mention in the decree that the person is 
a vitandus. The only crime by which one becomes ipso facto an 
excommunicatus vitandus is assault of the person of the Roman 
Pontiff (cfr. Canons 2258 and 2343). The Holy Office was asked 
whether an excommunicated person who was a public and notori- 
ous sinner, and who was either dead or unconscious when the 
priest arrives, may be given ecclesiastical burial when the rela- 
tions or friends who called the priest assert that he wanted the 
priest, or that he gave signs of repentance by kissing the crucifix 
or by other manifestations of devotion. The Sacred Congrega- 
tion answered that ecclesiastical burial may be given to him, but 
that ecclesiastical pomp and solemnity must be avoided at the 
funeral. If extraordinary circumstances arise in any case, the 
pastor shall consult the Ordinary and follow his orders.®4 


Section II 
OF SACRED SEASONS 


1271. Sacred seasons are the holydays, and in addition the 
days of fast and abstinence (Canon 1243). The supreme au- 
thority of the Church alone has the right to establish, transfer, 
or abolish holydays of obligation and days of fast and abstinence 
for the Universal Church. Local Ordinaries may for their 
respective dioceses or territories appoint holydays of obligation 
and days of fast and abstinence only per modum actus—that iS, 
temporarily but not perpetually (Canon 1244). 

Before the Constitution ‘‘Universa’’ of Pope Urban VIII was 
promulgated, the bishops had the right to establish holydays of 
obligation. That Constitution enumerated the holydays of 
obligation to be kept in the Universal Church, and forbade 
bishops to establish other days of obligation in their respective 
dioceses. A Declaration of the Sacred Congregation of Rites 
stated that the bishop cannot institute other holydays of obliga- 
tion in his diocese besides those mentioned in the Constitution of 
Pope Urban VIII.°° The Code, however, allows the bishop to 


64 September 19, 1887, quoted by Rossi, ‘‘La Sepultura Eeclesiastica, ’” 
n. 73, p. 139. 

65 September 13, 1642; Gasparri, ‘‘Fontes Cod. Jur. Can.,’’? I, 427. 

66 June 23, 1703 (Decreta Auth., n. 2113). 


50 A PRACTICAL COMMENTARY 


establish a holyday of obligation temporarily. The precise mean- 
ing of the phrase ‘‘per modum actus’’ is nowhere defined in the 
Code; wherefore, it is impossible to determine for how long a 
time the bishop may order the observance of a day as a holyday 
of obligation, although it is certain that he cannot make it such 
permanently. As to the days of fast and abstinence, there was 
no prohibition in the common law of the Church to prevent the 
bishop from appointing for his diocese days of fast and abstinence 
besides those obligatory on the whole Church by Papal law. The 
Code sets the same limits on the power of the local Ordinaries to 
appoint days of fast and abstinence as on their power to establish 
holydays of obligation. . 


PowWER OF DISPENSATION 


1272. Not only local Ordinaries, but pastors, may in special 
cases and for a good reason dispense individual persons or indi- 
vidual families subject to their jurisdiction (even when these are 
outside their territory), and strangers while they stay in their 
territory, from the common law regarding the observance of the 
holydays of obligation, of fast or abstinence, or even of fast and 
abstinence combined. Ordinaries may also, for reason of a great 
concourse of people on some special occasion or for the sake of 
public health, dispense the whole diocese or locality from the 
obligation of fast or abstinence, or from both. In exempt clerical 
religious organizations the superiors have the same faculties as 
pastors for the benefit of the religious themselves and all persons 
mentioned in the first sentence of Canon 514 (Canon 1245). 

It is evident that no authority inferior to the Supreme Pontiff 
can dispense from obligations imposed by the common law of the’ 
Church. If then other persons exercise such power, it must have 
been granted to them either by concession of the Supreme Au- 
thority or by custom legitimately established. The power which 
is here explicitly granted by the Code was before the Code 
attributed to them by custom, with the exception of the power of 
the bishop to dispense the whole diocese: according to a Declara- 
tion of the Holy Office,®’ the bishop could not grant this general 
dispensation, even when he had the papal faculty to dispense 
from fast and abstinence. 


67 March 17, 1883 (Collectanea de P, F., II, n. 1594). 


CANONS 1245-1247 51 


Subjects may be released from the obligation of the holyday, 
or of fast and abstinence, whether they are within or outside the 
territory of the Ordinary or the pastor. Strangers (that is, 
persons who have neither domicile nor quasi-domicile in the dio- 
cese or parish) may be dispensed when they actually are in the 
diocese, and they may make use of the dispensation for as long 
as it has been conceded—even after they have left the diocese or 
parish, provided the reason for the dispensation continues. The 
superiors of exempt clerical organizations of religious who can 
give dispensations from the obligation to observe holydays and 
days of fast and abstinence, are either major superiors (General, 
Provincial) or local superiors, because the Code grants the power 
to superiors generally. The power is limited ‘‘ad modum 
parochi’’ (after the manner of a pastor), and therefore restricted 
to individual religious; the dispensation of the entire community 
is not included in this faculty as granted by the Code. 

1273. The duration of a holyday of obligation, as well as of 
days of fast and abstinence, is to be reckoned from midnight to 
midnight, without prejudice to the concession which Canon 923 


makes for the gaining of the indulgences attached to some feast 
(Canon 1246). 


TITLE XIII 


OF FEAST DAYS 


1274. The only holydays of obligation for the universal 
Church are the following: All Sundays, the feasts of Christmas, 
the Circumcision, the Epiphany, the Ascension, Corpus Christi, 
the Immaculate Conception, the Assumption, St. Joseph, Sts. 
Peter and Paul, and All Saints. The patron feasts (of a town, 
diocese, country) are no longer holydays of obligation, but the 
local Ordinaries can transfer the external solemnity to the Sun- 
day immediately following. If any of the above-mentioned feasts 
have been legitimately abolished or transferred in some country, 
no change may be made without consulting the Holy See (Canon 
1247). 

The feasts of obligation had been reduced by the ‘‘Motu 
Proprio’’ of Pope Pius X, July 2, 1911, and the present Canon is 


68 Fiirich (Biederlack), ‘‘De Religiosis’’ (1919), 59; Schiifer, ‘‘Ordens- 
recht, 27/71. 


52 A PRACTICAL COMMENTARY 


in accordance with that document, except that the Feast of St. 
Joseph, suppressed by the said ‘‘Motu Proprio,’’ has been re- 
placed by the Code.®® In the United States the holydays of obli- 
gation have been reduced, at the request of the Fathers of the 
Third Plenary Council of Baltimore, to six days—Christmas, the 
Circumcision, the Ascension, the Immaculate Conception, the 
Assumption, and All Saints—by Deeree of the Holy Office, De- 
cember 31, 1885.7° 

The question was proposed to the Committee for the 
Authentic Interpretation of the Code whether by the above Canon 
all other holydays of obligation have been ipso*facto revoked, 
though in some nation, diocese or place they were observed as 
days of obligation introduced by particular law, or long-standing 
custom, or special concession of the Holy See. The answer was 
that they have been ipso facto abolished.” 

1275. On holydays of obligation Holy Mass must be heard, 
and one must abstain from servile work and from judicial pro- 
ceedings; also, unless legitimate custom or special indults make 
an exception, from public markets, fairs and other public buying 
and selling (Canon 1248). One may fulfill the obligation of 
hearing Mass by assisting at the Holy Sacrifice celebrated in any 
Catholic Rite, either in the open air or in any church, public or 
semi-public oratory, and in the private mortuary chapels in ceme- 
teries spoken of in Canon 1190, but not in private oratories, 
unless this privilege has been granted by the Holy See (Canon 
1249). 

Canon 1248 states the well-known twofold obligation on Sun- 
days and holydays of obligation—the obligation to hear Mass 
and abstain from servile works and occupations. Pope Innocent 
XI condemned the proposition: The precept to keep the holydays 
does not oblige under mortal sin, provided there is no scandal or 
contempt.” | 

In private oratories Mass may not be said unless one of the 
principal grantees of the privilege is present. Principal grantees 
are those only to whom the document of concession is addressed, 
and whose names appear on the reverse side of the document. 
The obligation of hearing Mass is satisfied in private oratories by 

69 Acta Ap. Sedis, III, 305. 

70 Acta et Decreta C. Balt. III, p. ev. 


71 February 17, 1918 (Acta Ap. Sedis, X, 170). 
72 Denziger-Bannwart, ‘‘ Enchiridion,’’ p. 354, prop. 1202. 








CANONS 1248-1250 53 


the principal grantees, by their blood-relations and relations by 
marriage to the fourth degree inclusive who live with the grantees 
in the same house, by their guests, and by the servants of the 
house whose service is actually required at the time of Mass.” 


TITLE XIV 


OF ABSTINENCE AND FASTING 


1276. The law of abstinence forbids the eating of fleshmeat 
and of broth made of meat, but does not exclude the use of eggs, 
milk and milk products (cheese and butter), and any seasonings 
of food though made from the fat of animals (Canon 1250). 

The broth meant here is a soup made by boiling meat or bones 
in water. The juice of the flesh may be had in certain extracts 
from which a broth can be made, and that also falls under the jus 
ex carne, forbidden by the Code on abstinence days. There is 
considerable controversy and uncertainty concerning the species 
of animals that may or may not be eaten on days of abstinence— 
such animals and birds, namely, which live in or near waters and 
feed almost exclusively on fish or other substances in rivers, 
swamps, lakes or oceans. This question is very old, for already 
St. Thomas tried to explain the difference between animals that 
may and may not be eaten, saying that by forbidden fleshmeat is 
meant the flesh of animals that sleep (some texts have, ‘‘are 
born’’) and breathe on land—that is to say, animals which 
usually live a long time out of water.* Beavers, otters, seals, 
wild ducks and various water fowl are excluded by most authors 
from Lenten food, while others maintain that it depends on the 
custom of the respective places whether they may be eaten on 
days of abstinence.” 

The ‘‘condimentum ex adipe’’ is a seasoning made from the 
fat of animals. The fat of animals constitutes layers of tissues 
distinct from their fiesh; the white flesh (as in bacon), which at 
times is also called fat, is flesh in the true sense of the term. 

1277. The law of fasting prescribes that only one full meal 


73 Noldin, ‘‘Theol. Moral,’’ II (De Preceptis, 1921), n. 262. 
74 Summa, II-II, qu. 147, art. 8. 
75 Coronata, ‘‘De locis et temporibus sacris,’’ n. 297. 


54 A PRACTICAL COMMENTARY 


a day be taken, but does not forbid a small amount of food in 
the morning and in the evening. As to the kind of food and the 
amount that may be taken, the approved customs of the place are 
to be observed. It is not forbidden to eat both fleshmeat and 
fish at the same meal, nor to interchange the midday and Sanne 
meal (Canon 1251). 

Most of the provisions of this Canon are taken from the 
former law. The distinction, however, between fast and absti- 
nence is new, in so far as up to the promulgation of the Code 
the abstinence from fleshmeat was considered essential to the 
fast. The Code now specifies the days on which both fast and 
abstinence are obligatory, and the days on which fast only 
is of obligation. New is also the abolition of the former 
prohibition on fast days—and in Lent even on Sundays—to eat 
fleshmeat and fish at the same meal, which prohibition Pope 
Benedict XIV had urged so strongly in his Encyclical ‘‘Non 
ambigimus.’’ 7 

While the Code indeed states that the obligation to fast is 
distinct from that of abstinence, it does not follow from this 
that on those days when fast only is prescribed one may eat 
meat, not only at the principal meal, but also at luncheon. The 
question was proposed to the Holy See whether one could with 
a safe conscience follow the opinion of some authors that, since 
the promulgation of the Code, it is permitted to eat fleshmeat 
several times a day on days which are fast days only. The 
Cardinal Prefect of the Committee for the Authentic Interpre- 
tation of the Code answered that it is not safe to follow that 
opinion.”* 

1278. Abstinence only is enjoined on the Fridays throughout 
the year. Fast and abstinence together are to be observed on 
the following days: Ash Wednesday, Fridays and Saturdays in 
Lent, Ember days, and the Vigils of Pentecost, the Assumption, 
All Saints, and Christmas. Fast only is prescribed for all the 
other days of Lent. 

On Sundays and holydays of obligation, except on a holyday 
in Lent, there is neither fast nor abstinence, and, if a vigil that 
is a fast day falls on a Sunday, the fast is not to be anticipated 
on Saturday (as the law heretofore demanded), but is dropped 





76 May 30, 1741; Gasparri, ‘‘Fontes Cor. Jur. Can.,’’ I, 678. 
77 October 29, 1919 (Acta Ap. Sedis, XI, 480). 


CANONS 1251-1253 55 


altogether that year. The Lenten fast and abstinence cease at 
twelve o’clock noon on Holy Saturday (Canon 1252). 

The days on which the law of fasting only and those on 
which the laws of both fast and abstinence are to be observed, 
are enumerated in Canon 1252. In the name of all the bishops. 
of the United States, the Archbishop of Baltimore asked the 
Holy See to transfer the abstinence on Saturdays in Lent to 
the Wednesdays, with the exception of Ember Saturday. The 
Sacred Congregation of the Council, January 14, 1919, granted 
the request for two years. A similar reply was given for Canada 
on the same day.” 

In the United States no holyday of obligation occurs in Lent, 
but where the feast of St. Joseph (March 19) is kept as a holy- 
day of obligation, the question arose whether the fast, or fast 
and abstinence, remain when the feast falls on a Friday or 
Saturday in Lent. The answer was that, according to Canon 
1252, neither fast nor abstinence ceases. The Committee further 
declared that the abolition of the anticipated vigil fast on Satur- 
day, when the feast falls on Monday, applies to the whole year.” 
It is clear from the wording of the Code that the cessation of 
fast and abstinence (except during Lent) is made in favor of 
holydays of obligation only, not of suppressed feasts, or feasts 
kept by popular devotion. The bishop may, however, give a 
dispensation from fast and abstinence on the strength of Canon 
1245, when there is an unusually large gathering of people in 
a certain locality for religious or secular purposes. 

1279. The foregoing Canons make no change in particular 
indults, in the vows of either individual persons or communi- 
ties, or finally in the constitutions and rules of religious organi- 
zations and approved institutes of men or women living in com- 
munity, even those without vows (Canon 1253). 

The workingmen’s indult was first granted for the United 
States by the Sacred Congregation of the Propaganda, March 
15, 1895; it was granted for ten years, renewed for another ten 
years in 1905, and again for ten years, June 3, 1915.8° Accord- 
ing to this indult, the bishops can dispense working people and 
their families from abstinence on all days except the Fridays 


78 Ecclesiastical Review, LUX (1919), 574. 

779 Committee for the Auth. Interpr. of the Code, November 24, 1920 
(Acta Ap. Sedis, XII, 576). 

80 Eccl. Review, XII, 425; LIII, 329, 


56 A PRACTICAL COMMENTARY 


throughout the year, Ash Wednesday, Holy Week (which week 
is now modified as to abstinence by the Code), and the Vigil of 
Christmas. To Catholic men in the United States army and 
navy, while they are in actual service, and their families eating 
“with them, Pope Pius IX granted dispensation from abstinence 
on all days except Ash Wednesday, the three last days of Holy 
Week (now modified by the Code), and the vigils of the As- 
sumption and Christmas.*t These indults remain, according to 
Canon 1253, and they are not to be considered revoked by the 
decree of the Sacred Consistorial Congregation, April 25, 1918, 
which revoked the faculties which were granted by the printed 
formulas for five, ten, ete., years. The workingmen’s indult 
and that for the army and navy were not granted by’ those 
formulas, but upon special request. 

With regard to the special fasts which members of religious 
organizations may be bound to observe by vow, or by their rule 
and constitutions, the Code states that it does not intend to 
change such obligations. With reference to the days of fast 
and abstinence obligatory on religious as well as on seculars by 
the law of the Code, the Sacred Congregation of Religious has 
declared that they enjoy the benefit of the mitigations and 
dispensations granted to a country by Apostolic indult, unless 
the indult expressly excludes them.* 

1280. The law of abstinence binds all who have completed 
their seventh year of age; the law of fasting binds all persons 
from the completion of their twenty-first year until the be- 
ginning of their sixtieth (Canon 1254). 

The Sacred Penitentiary declared that persons who, because 
of their age or work, are not obliged to fast, may eat meat at 
all their meals on the days in Lent on which persons bound to 
fast may by indult eat meat once a day.®* In recent times 
certain moralists held that persons either dispensed or excused © 
from the fast could eat meat at all their meals, if an indult 
allowed meat once a day to those obliged to fast. In fact, the 
Sacred Penitentiary stated that it was not expedient for the 
bishop to limit the dispensation from abstinence on fast days 
to the eating of fleshmeat once a day for those not obliged to 


81 Sabetti-Barrett, ‘‘ Theol. Moral.’’ (ed. 1916), n. 338. 
82 September 1, 1912 (Acta Ap. Sedis, IV, 626). 
83 January 16, 1834, and May 27, 1863 (Acta 8S. Sedis, I, 426). 


CANON 1254 57 


fast.84 The Code makes most of the days in Lent days of fast 
only; wherefore, persons who are not obliged to fast are en- 
tirely free on these days to eat fleshmeat as often as they 
desire. 

1281. A case was submitted to the Sacred Congregation of 
the Council as to whether, in dioceses where by Papal indult 
the abstinence on Saturdays in Lent had been transferred to 
Wednesday, strangers were bound to abstain on Wednesday, 
instead of Saturday. The Sacred Congregation stated that the 
substance of the precept of abstinence in Lent demands two 
days of abstinence and, this being the universal law, all Catho- 
lies are subject to it. The manner, however, of complying with 
this law in the dioceses referred to is a particular law. Stran- 
gers are not bound by the particular law fixing Wednesday 
as a day of abstinence, but they must abstain either on Wed- 
nesday or on Saturday, and, provided they give no scandal, 
they are free to choose either Wednesday or Saturday.®® 

The faculty to change the Saturday abstinence in Lent to 
Wednesday for the United States was renewed for five years by 
the Sacred Congregation of the Council, June 4, 1920. Both 
this indult and the workingmen’s indult expired in 1925. At 
the 1925 meeting of the Archbishop and Bishops at the Catholic 
University, Washington, D. C., Cardinal O’Connell, Archbishop 
of Boston, was requested to petition a renewal of the two indults. 
He was informed by the Holy Sce that the request was granted, 
and rescripts were being forwarded to the individual bishops 
(Boston Pilot, February 13, 1926). 


84 Sabetti-Barrett, ‘‘Theol. Moral.’’ (ed. 1916), n. 334, p. 305. 
85 February 9, 1924 (Acta Ap. Sedis, XVI, 94). 


PART THREE 
OF DIVINE WORSHIP 


1282. To the Blessed Trinity and to each of the three Per- 
sons and to Christ our Lord also under the sacramental species, 
ig due the cult called latria (adoration in its proper sense) ; to 
the Blessed Virgin Mary the cult called hyperdula; to the other 
saints reigning with Christ in heaven the cult called dulia. To 
sacred relics and images is also due veneration and cult in pro- 
portion to the person to which the relics and images refer 
(Canon 1255). The terms latria, hyperdulia, dulia are technical 
expressions commonly employed in dogmatic theology, and they 
need not be explained here. 

If the cult is given to God, the saints or beatified persons 
in the name of the Church by persons legitimately appointed 
for this purpose and by acts (forms of worship) instituted by 
the Church, it is called public cult; otherwise it 1s ealled private 
(Canon 1256). 

The Holy Sce alone has the right to regulate the sacred 
liturgy and to approve liturgical books (Canon 1257). 

The Supreme Authority of the Church has reserved to itself 
the regulation of the entire publie worship of the Church in 
order to preserve the purity of faith, for the publie prayers 
and ceremonies of the Church give expression to the principles 
of faith. There can be no doubt that the Supreme Pontiff is 
the divinely appointed guardian of the faith, and therefore 
also the guardian of the liturgy or divine worship. In the 
early days of the Church the prayers and ceremonies of divine 
worship were handed down from generation to generation. 
Provincial Councils watched over the sacred liturgy-as it de- 
veloped from its primitive forms to a more elaborate cere- 
monial, until these forms crystallized and became fixed in the 
exercise of the public worship. By his Bull ‘‘Immensa,’’ Jan- 
uary 22, 1588, Pope Sixtus V created the Sacred Congregation 

58 


CANONS 1255-1258 59 


of Rites, and gave it exclusive control of the entire public wor- 
ship of the Church. When the official texts of the Roman 
Missal, Ritual, and Breviary were published by the Holy See, 
allowance was made for deviations from these books intro- 
duced from ancient times by some dioceses and religious Orders. 
‘hese special Missals, Rituals and Breviaries have, however, 
been examined by the Holy See, and after their approval 
nobody may change or modify them. 

1283. The printing and publishing of liturgical books is 
reserved to the Holy See. By law of Pope Clement VIII (Bull 
“‘Cum in Eeclesia,’’ May 10, 1602), new editions are to be 
printed only by firms specially authorized by the Holy See, and 
every sheet of these so-called typical editions must be submitted 
to the Sacred Congregation of Rites before it is put on the 
press. Local Ordinaries may authorize other printers to copy 
the typical editions, but must vouch for the correctness of the 


copy. 


PARTICIPATION OF CATHOLICS IN Non-CATHOLIG WoRSHIP 


1284. It is unlawful for the faithful to assist in any active 
manner, or to take part in the sacred services of non-Catholies. 
At funerals of non-Catholices, at their marriages, and similar 
solemnities, provided there is no danger of perversion or scandal, 
passive or merely material presence on account of a civil office 
or for the purpose of showing respect to a person may be tole- 
rated for a grave reason, which in doubtful cases must be 
approved by the bishop (Canon 1258). 

Many cases relative to the forbidden communication in 
religious services of non-Catholics have been decided by the 
Holy See on the basis of the particular facts submitted to the 
Supreme Pontiff. Most of these cases have been grouped to- 
gether by Blat in his commentary on the Code.1 Thus, it has 
been declared that a Catholic may not contribute. money to- 
wards the building of an heretical church, or give his work 
gratis. The building of non-Catholic churches and synagogues 
by Catholic workmen and architects is not forbidden, unless 
circumstances arise which make such codperation an insult to 
the Catholic faith. Visiting a non-Catholic church as a sight- 


1Commentariwm, lib. IIT, De Rebus, pp. 145-152. 


60 A PRACTICAL COMMENTARY 


seer is not forbidden, but one may not be present at non- 
Catholic prayers, services or sermons either in a church or 
elsewhere. A Catholic may not be sponsor at the baptism of 
Protestant or schismatical children given by their minister; 
to be selected as best man or bride’s maid at a Protestant 
wedding is usually considered in America as merely a mark of 
honor and friendship, not as officially witnessing the marriage 
contract. If a priest wishes to attend a non-Catholic funeral 
because the non-Catholic was his relation or friend, he may not 
wear any sacred vestments, nor take active part in the religious 
ceremony performed by the non-Catholic minister. 

1285. As to the participation of non-Catholics in Catholic 
worship, it is forbidden to have non-Catholies sing in the choitr.? 
Permission to engage a Protestant organist was granted with 
great reserve by the Holy Office, namely only temporarily, 
while a Catholic cannot be had, and provided the Catholics 
take no offense.? Heretics and schismatics may not be sponsors 
in Catholic Baptism and Confirmation; they likewise may not 
be witnesses at Catholic marriages, but the Ordinary can tole- 
rate it for a grave reason, provided there is no scandal. The 
mere passive assistance of non- eae at Catholic services is 
not forbidden.* 


RigHt AND Duty or LocAn ORDINARY TO. SUPERVISE PUBLIC 
‘WORSHIP 


1286. Prayers and pious exercises in churches or oratories 
shall not be permitted without the revision and express per- 
mission of the local Ordinary, who in more difficult cases shall 
submit the whole matter to the Apostolic See. The local Ordi- 
nary cannot approve new litanies to be recited publicly (Canon 
1259). 

The prohibition concerning litanies existed before the Code, 
and should be understood in the sense of the former Decrees 
on this point. According to Declarations of the Sacred Con- 
eregation of Rites, litanies not approved by the Holy See cannot 
be recited by a number of people together in a church or pub- 


2Instr. S. Officv, June 22, 1859 (Collect. de P. F., I, n. 1176). 

3 Holy Office, February 23, 1820 (Collect de P. F., vy n. 739); Pro- 
hibition for Catholics to play organ at Protestant services, Holy Office, 
July 8, 1889 (Collect. de P. F., II, n. 1713). 

4 Holy Office, Aug. 19, 1891 (Collect. de Py Fo 1i ny 1765). 


ee 


CANONS 1259-1261 61 


lic oratory, even though the services are not conducted by the 
priest as minister of the Church.® Nuns may not recite such 
litanies in choir, even though the choir is divided off from the 
church by grates.° Another Decree stated that the Sisters may 
not recite such litanies in common in a public church, or in a 
choir which is part of a church, or in a public oratory.7?. The 
litanies approved by a local Ordinary may be recited privately. 
The Holy See strictly forbids the interpolation of invocations 
in approved litanies, and also deviations from the form in which 
they are approved. It was permitted, however, to let the choir 
chant three of the invocations with their responses and have 
the people sing the fourth with its response. Recently the 
invocation: ‘‘Ut omnes errantes ad unitatem Ecclesiz revocare 
et infideles universos ad Evangelii lumen perducere digneris: 
Te rogamus, audi nos,’’ was added to the Litany of All Saints 
after the invocation: ‘‘Ut cuncto populo Christiano, ete.’’® 

1287. The ministers of the Church must depend solely on 
the authority of the ecclesiastical superiors in the exercise of 
divine cult (Canon 1260). The Church has her commission 
from Christ, and she possesses that power independently of 
state or secular power, wherefore she protests in this Canon 
against interference in carrying out God’s commission. 

1288. It is the duty of the local Ordinaries to see that the 
precepts of the sacred canons regarding divine worship are 
faithfully observed, and that neither into public nor into private 
worship, nor into the private lives of the faithful, any super- 
stitious practices are introduced, or anything admitted that is 
contrary to faith or discordant with ecclesiastical tradition, or 
has the appearance of sordid profit-making. If the local Ordi- 
nary publishes any laws concerning these matters for his terri- 
tory, all religious, even the exempt ones, are also bound to 
observe them, and the Ordinary can visit their churches and 
publie oratories to see that such precepts are obeyed (Canon 
1261). 

1289. It is to be desired that, in harmony with the ancient 
discipline of the Church, the women should be separated in 

5 March 6, 1894 (Decreta Authentica, n. 3820). 

6 June 1, 1896 (Decreta Authentica, n. 3916). 

7 February 11, 1898 (Decreta Authentica, n. 3981). 


8 Sacred Cong. of Rites, October 15, 1920 (Acta Ap. Sedis, XIT, 548). 
9 Sacred Cong. of Rites, March 22, 1922 (Acta Ap. Sedis, XIV, 199). 


62 A PRACTICAL COMMENTARY 


church from the men. The men should assist at divine services, 
either in church or outside of it, with uncovered heads, unless 
the approved customs of the people or peculiar circumstances 
demand the contrary; the women should assist in modest dress 
and with heads covered, especially when they approach the 
Table of the Lord (Canon 1262). 

The separation of men and women is desired, but not in- 
sisted upon by the Code, and in the United States it is not the 
practice to reserve one place for men and another for women. 
According to the general Catholic custom, when entering a 
church, the men always uncover and the women cover their 
heads, even though no services are going on at the time. In 
some of the missionary districts other customs prevail, for their 
ways of showing respect differ from those in Europe and in 
countries colonized by Europeans. As to the modesty of wo- 
men’s attire, the sanctity of the place should dictate modera- 
tion in following some of the modern fashions. Serious-minded 
Catholic women use good judgment in these matters, but un- 
fortunately many whose faith is ae lack the delicate 
sense of Christian propriety. 

1290. Civil officials may, according to their rank and dig- 
nity, be assigned a special place in the church, according to the 
regculation of the liturgical laws. Without the explicit permis- 
sion of the local Ordinary pews in church may not be reserved 
by the faithful and their families, and the Ordinary should not 
give the consent except where sufficient provision has been made 
for the accommodation of the rest of the people. There is 
always the tacit understanding in these permissions that the 
Ordinary can for a good reason revoke the permission, no 
matter for what length of time individuals or families have held 
such pews (Canon 1263). 

The law of the Decretals forbade lay persons to stand near 
the altar at the celebration of the sacred mysteries or to sit 
among the clergy.1° The Cwremoniale Episcoporum rules that, 
in accordance with the rule of the sacred canons and the prac- 
tice of the ancient and laudable discipline introduced from the 
very beginning of the Christian religion, the seats for prominent 
laymen, no matter how high their rank may be, must be outside 


10 Decretal, Greg. IX, ec. 1, De vita et honest, cler., lib. ILI, tit. 1. 


CANONS 1262-1264 63 


the choir and sanctuary.?t The renting of pews for the use of 
individuals or families is a general practice in the United States, 
and the pew rent forms one of the main sources of the income 
of parishes. The Third Plenary Council of Baltimore demands 
that a sufficient number of places remain free for the benefit 
of the poor who are unable to pay pew rent.?? 


SACRED Music 


1291. Musical compositions for the organ or other instru- 
ments or for the voice, which contain anything lascivious or 
voluptuous, must be absolutely barred from church, and the 
liturgical laws concerning sacred music shall be observed. Re- 
ligious women, in so far as they are allowed by their constitu- 
tions or the liturgical laws and the permission of the local 
Ordinary to sing in their own church or public oratory, shall 
sing from a place where they cannot be seen by the people 
(Canon 1264). 

The first part of Canon 1264 is taken from the Council of 
Trent.* Many years ago, the Sacred Congregation of the 
Propaganda issued an Instruction to the Archbishop of Balti- 
more on the necessity of barring from the church all theatrical 
and worldly musical compositions.1* In 1903 Pope Pius X 
inaugurated a thorough reform of church music. The pro- 
vision in the Motu Proprio of the Supreme Pontiff, that women 
are not to have a part in the strictly liturgical chants of the 
sacred liturgy, has been the most difficult to comply with in 
many parish churches, and in not a few there could never be a 
High Mass or any liturgical singing if women were to be ex- 
cluded. A Decree of the Sacred Congregation of Rites to the 
Archbishop of Los Angeles, in Mexico, seems to modify to some 
extent the absolvts prohibition of the Motu Proprio concerning 
women and the liturgical chant, but the Decree as reported in 
the Decreta Authentica of the Sacred Congregation of Rites is 
so obscure in its wording that nothing certain can be concluded 


42 Tape) €a.exi11,) Nes 13, 

12 Acta et Decreta, n. 289 (Appendix, p. 231). 

13 Sessio XXII, Decr. de observ. et evitand. in cel. Misse. 
14 June 22, 1884 (Collect de P. F., II, n. 1621). 

15 November 22, 1903 (Collect de P. F., II, n. 2182). 


64 A PRACTICAL COMMENTARY 


from it.1° With patience and persevering interest in the ancient 
solemn and prayerful chants of the Church, the pastors can, 
in many parishes at least, restore the dignity of Catholic wor- 
ship.?7 


TITLE XV 


OF THE CUSTODY AND CULT OF THE HOLY EUCHARIST 


1292. The Blessed Sacrament may be kept in the following 
churches, if there is a person to guard it, and if the priest 
regularly celebrates Holy Mass at least once a week in the place: 

(1) It must be kept in the cathedral church and in the 
principal church of an abbey or a prelacy nullius, of a vieariate 
and prefecture Apostolic, in every parochial and quasi-parochial 
church, and in a church attached to houses of exempt religious 
men or women; 

(2) It may be kept with the permission of the local Ordi- 
nary in collegiate churches and in the principal (public or sem1- 
public) oratory of religious houses and pious institutes, and also 
in ecclesiastical colleges in charge of the secular clergy or of 
religious organizations (Canon 1265, § 1). 

1293. In other churches and oratories it cannot be kept ex- 
cept by apostolic indult. The local Ordinaries can for a good 
reason grant this permission to a church or public oratory per 
modum actus only (that is to say, temporarily but not per- 
petually). Nobody is allowed to keep the Blessed Sacrament in 
his home or to carry it with him on a journey (Canon 1265, 
§§ 2-3). 

The Code demands in general terms that there must be some 
person—not necessarily a priest—to guard the Blessed Sacra- 
ment. Formerly the bishop could not allow the keeping of the 
Blessed Sacrament in oratories of religious communities or in 
educational or charitable institutions, a faculty from the Apos- 
tolic See being required.’® Former regulations, as well as the 
Code, demand that Holy Mass be said at least once a week in 
places where the Blessed Sacrament is kept. If this cannot be 


16 January 17, 1908 (Decr. Awth., n. 4210). 
17 Ecclesiastical Review, Oe ae 700. 
18 Sacred Cong. of Rites, March 8, 1879 (Decr. Auth., n. 3484). 


CANONS 1265-1267 65 


done regularly, the bishop has no power to allow the keeping 
_of the Blessed Sacrament in a church or chapel, for the Code 
sets it down as a positive requirement. 

1294. The churches in which the Blessed Sacrament is kept, 
especially parochial churches, should be open to the faithful for 
at least a few hours daily (Canon 1266). 

1295. In religious houses and pious institutes the Blessed 
Sacrament can be kept in the church or principal oratory only, 
and in the convents of nuns (Sisters with solemn vows) it can- 
not be kept inside the choir or enclosure. All privileges to the 
contrary are revoked (Canon 1267). 

The question arose whether the Blessed Sacrament may be 
kept in more than one chapel in some of the convents, academies 
and colleges, homes for the aged or for orphans, hospitals, ete. 
The Committee for the Authentic Interpretation of the Code 
answered: If the religious house or pious institute has a public 
church, and the community uses the same for the ordinary daily 
religious exercises, the Blessed Sacrament is to be kept in that 
church only. If this is not the case, the Blessed Sacrament may 
be kept in the principal oratory or chapel of the religious house 
or institute, without prejudice to the rights of the church (if 
it has any) to keep the Blessed Sacrament. If there are several 
formally distinct and separate (religious). families in one and the 
same house or institution, each may have its own chapel with the 
Blessed Sacrament, because virtually they form separate religious 
houses or institutions.?? 

1296. The Blessed Sacrament cannot be kept continually or 
habitually in more than one altar of a church. It should be 
reserved in the most prominent and distinguished place in a 
church, and therefore, as a rule, on the main altar, unless another 
altar is more convenient and appropriate for the veneration and 
worship of this great Sacrament: this regulation, however, does 
not affect the liturgical laws concerning the last three days of 
Holy Week. 

In cathedral, collegiate and conventual churches in which 
choir functions are conducted at the main altar, it is as a rule 
more convenient not to keep the Blessed Sacrament on the main 
altar but on a side altar or in some chapel of the church, so 
tLat the ecclesiastical offices shall not be interfered with. 


19 June 2-3, 1918 (Acta Ap. Sedis, X, 346). 


66 A PRACTICAL COMMENTARY 


The rectors of churches shall see that the altar of the Blessed 
Sacrament be ornamented above all others so that its very 
appearance shall incite the faithful to greater piety and devotion 
(Canon 1268). 

There are occasions when the Blessed Sacrament may for a 
time be kept on several altars in the same church. For example, 
the rubrics demand that, during the Forty Hours’ Devotion, the 
Blessed Sacrament be removed from the altar of exposition to 
another altar (if there is one that serves the purpose), so that 
Holy Communion may not be distributed from the altar of 
exposition. Again, churches which have perpetual adoration 
must keep the ciborium on a side altar for the distribution of 
Holy Communion.2® The Caremoniale Episcoporum demands 
that the Blessed Sacrament be removed from the altar at which 
the bishop holds solemn pontifical functions.”* 


Tue TABERNACLE 


1297. The Blessed Sacrament must be kept in an immovable 
tabernacle, placed in the middle of the altar. The tabernacle 
should be well constructed, securely closed on all sides, properly 
ornamented according to the liturgical laws, free from all other 
things, and guarded so well that there is no danger of profana- 
tion. For a grave reason and with the approval of the local 
Ordinary it is allowed to take the Blessed Sacrament out of the 
tabernacle overnight, and to keep it in a safer but decent place 
on a corporal, and with a light burning before it, as Canon 1271 
demands. The key of the tabernacle in which the Blessed Sacra- 
ment is kept must be most carefully guarded; this 1s a grave 
obligation of conscience on the part of the priest who has charge 
of the church or oratory (Canon 1269). 

The Code does not state that the tabernacle key must neces- 
sarily ke kept by the priest, but it makes him responsible for its 
safe keeping. The tabernacle is subject to the approval of the 
local Ordinary, and, if he demands a steel safe for the greater 
protection of the Blessed Sacrament, churches and chapels which 
keep the Blessed Sacrament must obey the order. The Holy See 
leaves this matter to the local Ordinary, as may be seen from 


20 Sacred Cong. of Rites, May 18, 1878 (Decr. Auth., n. 3449). 
21 Cap. xii, n. 8. 


CANONS 1268-1271 67 


a case in which a priest requested approval for several inventions 
for the safer keeping of the Blessed Sacrament. The Sacred 
Congregation, having inspected the inventions and praised the 
intention of the inventor, said that the matter must be left to 
the local Ordinaries.?2 The interior of the tabernacle is to be 
either gold-plated or covered with white silk. The exterior of 
the tabernacle is to be covered with cloth of silk or other fabric, 
and it is supposed that the tabernacle stands free on the altar 
and ean be covered entirely with a cover of the shape of the small 
cover for the ciborium. The Sacred Congregation of Rites insists 
on this, and has declared that no custom of leaving the tabernacle 
uncovered is legitimate.?* No sacred vessels except those holding 
the Blessed Sacrament are permitted to be kept in the tabernacle 
(e.g., not those containing the holy oils, relics, ete.). A corporal 
must be placed on the floor of the tabernacle. The tabernacle 
may be of marble, wood, or any other material, unless the local 
Ordinary has forbidden certain kinds of tabernacles. 

1298. A sufficient number of particles for the Communion of 
the sick, and of the faithful generally, shall always be kept in a 
pyx of solid and appropriate material. This vessel must be kept 
clean and tightly enclosed with its lid; it must also be covered 
with a veil of white silk, and ornamented in a becoming manner 
(Canon 1270). 


THE SANCTUARY LAMP 


1299. Before the tabernacle in which the Blessed Sacrament 
is kept should burn all day and night at least one lamp, fed 
either with olive oil or bee’s wax. Where olive oil is not easily 
obtainable, the local Ordinary may according to his prudent 
judgment allow the use of other oils, which should, in so far as 
possible, be vegetable oils (Canon 1271). 

The burning of lights as a mark of respect is very ancient 
among the heathen nations, as well as among the Hebrews. <A 
Decree of the Sacred Congregation of Rites of February 23, 1916, 
employs practically the same terms as Canon 1271, and adds that, 

22 March 18, 1898 (Decr. Auth., n. 3987). 

23 July 1, 1904 (Decr. Auth., n. 4137). The tabernacle cover may be 
always white, or change with the color of the day (S. R. C., July 21, 1855; 
Decr. Auth., n. 3035); during Requiem Masses chanted at the altar of the 


Blessed Sacrament, the cover must be purple (S. R. C., Dec. 1, 1882; Deer. 
Auth., n. 3562). 


68 A PRACTICAL COMMENTARY 


as a last resort, the local Ordinary may also allow the use of 
electric light in place of other kinds of lights, if he finds it neces- 
sary.?* 


Tue ALTAR BREADS 


1300. The consecrated hosts, whether for the Communion of 
the faithful or for the exposition of the Blessed Sacrament, must 
be fresh and renewed frequently, and the old particles must be 
consumed as prescribed, so that there may be no danger of cor- 
ruption. The instructions of the local Ordinary in this matter 
must be faithfully observed (Canon 1272). 

It is evident that, before consecration, the altar bread should 
be fresh and clean and well made; respect and love dictate all 
possible care in everything connected with the great Sacrament. 
The Church did not want to lay down an absolute rule as to 
how recently made the hosts should be, because in many places 
it is not possible to get the hosts immediately after they are 
baked. The latest Decree of the Sacred Congregation of the 
Sacraments states that the practice of using hosts which are two 
or three months old, cannot be legitimately followed, and that the 
precept of the Rituale and the Code which demands that the hosts 
must be recently made, should be observed.?®> The term ‘‘recent”’ 
is usually explained by authors to the effect that the hosts may not 
be more than two or three weeks old. The same consecrated hosts 
cannot be reserved a long time in the tabernacle. In the Consti- 
tution ‘‘Etsi Pastoralis,’? Pope Benedict XIV ruled that the 
consecrated species should be consumed within a week or at the 
most fifteen days.?® Although that Constitution was given spe- 
cifically to the Italo-Greek Church in Southern Italy, it may be 
taken as a safe guide in any church. 


RELIGIOUS TEACHERS Must PROMOTE VENERATION OF THE 
BLESSED SACRAMENT 


1301. Those whose work it is to give religious instruction to 
the faithful, shall not neglect to excite in their minds devotion 
for the Blessed Eucharist, and shall admonish them to assist at 
Mass and to visit the Blessed Sacrament not only on Sundays 


24 Acta Ap. Sedis, VIII, 72. 
25 December 7, 1918 (Acta Ap. Sedis, XI, 8). 
26 May 26, 1742; Gasparri, ‘‘ Fontes Cod. Jur. Can.,’’ I, 734. 


CANONS 1272-1274 69 


and holydays of obligation, but also as frequently as possible 
during the week (Canon 1273). 


EXPOSITION OF THE BLESSED SACRAMENT 


1302. In churches and oratories which have the right to 
reserve the Blessed Sacrament (by law or by special concession), 
private exposition (that is, with the cibortwm) can be held for 
any good reason without the permission of the Ordinary. Pub- 
lie exposition, however (that is, with the ostensorium), may be 
held in all churches on the Feast of Corpus Christi and during 
the octave, both during Holy Mass and at Vespers. At other 
times, public exposition may be held only for good and serious 
reasons, especially a public cause, with permission of the local 
Ordinary, and this permission is required also in the churches 
of exempt religious organizations. 

The exposition and reposition of the Blessed Sacrament may 
be done by either priest or deacon. However, only the priest can 
give benediction with the Blessed Sacrament, and the deacon is 
not permitted to give it except in the case where he, according to 
Canon 845, takes the Viaticum to the sick (Canon 1274). | 

The rules concerning the public exposition are the same as 
before the promulgation of the Code. The Sacred Congregation 
of Rites makes it obligatory to give benediction with the Blessed 
Sacrament after every public exposition, before the Sacrament 
is replaced in the tabernacle.2? In the chapels of Sisterhoods, the 
bishop may allow public exposition as often as he thinks it 
proper.** Public exposition is forbidden without incensing—not, 
however, without singing.?? The raising and lowering of the 
monstrance may not be done by means of mechanical devices,*° 
and it is forbidden to place the Blessed Sacrament in the hands 
of some statue, or on the breast of a picture or statue of the 
Sacred Heart, or on the heart of the crucifix. In the case of 
the private exposition in which the ciborium remains in the taber- 
nacle (the door of which is opened), it was not allowed formerly 
to give benediction with the pyx, but on November 30, 1895, a 
Decree of the Sacred Congregation of Rites allowed this form of 


27 July 12, 1889 (Decr. Auth., n. 3713). 

28 February 18, 1889 (Decr. Auth., n. 3703). 
29 June 30, 1883 (Decr. Auth., n. 3580). 

30 July 7, 1877 (Decr. Auth., n. 3425). 

31 April 23, 1875 (Decr. Auth., n. 3349). 


70 A PRACTICAL COMMENTARY 


benediction.*2 In the exposition with the ciborium no incense is 
required, but in the public exposition it is demanded at the 
exposition and reposition.** 


Tub Forty Hours’ DEVOTION 


1303. The Forty Hours’ Devotion shall be celebrated each 
year with the greatest possible solemnity in all parochial and 
other churches where the Blessed Sacrament is habitually pre- 
served, on the days fixed with the consent of the local Ordinary. 
Where the exposition cannot without great inconvenience or 
danger of irreverence be continued day and night for forty con- 
secutive hours, the local Ordinary should arrange that the exposi- 
tion is held in a more solemn manner on certain days for several 
consecutive hours (Canon 1275). 

By Decree of the Holy Office, January 22, 1914, Pope Pius X 
eranted that, wherever the Forty Hours’ Devotion could not be 
held as demanded by Pope Clement VIII (that is to say, for 
forty consecutive and uninterrupted hours, day and night), the 
following method could be followed and the indulgences and 
privileges granted for this adoration gained thereby: The 
Blessed Sacrament shall be exposed on the first day at any hour 
in the forenoon, and shall remain exposed during the day; it 
shall be exposed throughout all the second day and also on the 
third. On the third day the devotion may close either about noon 
or in the evening. To this devotion are granted certain indul- 
eences (which were conceded first by Pope Pius IX, November 
26, 1876, to the City of Rome) and the concession of the privi- 
leged altar granted by Pope Pius VII, May 10, 1807.** 

For the United States the Fathers of the Second Plenary 
Council of Baltimore asked and obtained all the indulgences and 
privileges of the Forty Hours’ Devotion as granted by Pope 
Clement VIII with permission to expose the Blessed Sacrament 
during the day only, and to omit the procession with the Blessed 
Sacrament, if the pastor could not conveniently have it.*° 

32 Decr. Auth., n. 3875. 

33 July 5, 1907 (Decr. Auth., n. 4202). 

34 Acta A. Sedis, VI, 74. 

35 January 24, 1868; Acta et Decreta Conc. Plen. Balt. II, Decretum 
IV, ex Decretis Sacre Cong. de Propaganda Fide, p. exlix (Cfr. No. 377 


of the Decrees of the Council) ; Wapelhorst, “Compendium S. Liturgie’’ 
(9th ed.), n. 220. 


CANONS 1275-1277 71 


TITLE XVI 


OF THE CULT OF THE SAINTS, SACRED IMAGES AND 
RELICS 


1304. It is a good and useful practice to invoke in suppliant 
manner the servants of God who reign with Christ, and to 
venerate their relics and images, but all the faithful shall espe- 
cially cultivate a filial devotion for the Blessed Virgin Mary 
(Canon 1276). 

Only those servants of God may be honored with a public 
cult who have been inserted by the authority of the Church in the 
list of the saints or blessed. The persons who have been 
canonically placed in the catalogue of saints are to receive the 
cult of duliza, and may be honored everywhere with any of the 
acts of that kind of cult. Beatified persons, however, cannot be 
venerated publicly except in the places and in the form granted 
by the Roman Pontiff (Canon 1277). 

In the early centuries of the Church the Holy See had not 
yet reserved to itself the matter of public veneration of the ser- 
vants of God. The matter was not left to the popular judgment 
of the faithful, but, as Pope Benedict XIV proves,*® the bishop 
of the diocese examined into the cases of those who were said to 
have died a martyr’s death. Besides, as Pope Benedict likewise 
shows, the acts of the martyrs were sent by the bishop of the 
diocese where they had died to other dioceses and to the Roman 
Pontiff. After the centuries of persecution, the custom developed 
of paying public homage also to saintly men who had died a 
natural death, and the bishop of the diocese watched likewise over 
these cases. The first case of a formal canonization pronounced 
by the Supreme Pontiff is said to be the canonization of St. 
Udalricus, Bishop of Aosta, promulgated by Pope John XV in 
993.°* Finally, Pope Alexander IIT (1159-1181) for the first 
time reserved by written law the beatification of the servants of 
God to the Apostolic See.’ The Decretal of Pope Alexander was 
given on the occasion of a particular case, and was not very 
explicit. Pope Urban VIII issued a Constitution which fully 


36 De Servor. Det Beatific. et Beatorwm Canonizatione, lib. I, cap. 3 
(Opera Omnia Bened. XIV, T). 

87 Wernz, ‘‘Jus Decretal.,’?’ III, n. 371. 

38 Decretal. Greg. IX, c. 1, De Reliquiis et Ven. Sanc., lib. ITI, tit. 45. 


72 A PRACTICAL COMMENTARY 


covered the entire question of public cult to the servants of God, 
and took the entire matter out of the hands of the bishops, reserv- 
ing everything pertaining to beatification or canonization to the 
Holy See.*® 

1305. The saints of nations, dioceses, provinces, confraterni- 
ties, religious organizations, and of other places and organiza- 
tions, may under the conditions prescribed by law be chosen as 
patrons, and when the Holy See confirms such choice they are 
constituted as patrons; the blessed cannot be chosen as patrons 
without a special indult of the Holy See (Canon 1278). 


IMAGES EXPOSED FOR VENERATION 


1306. Without the approval of the local Ordinary, nobody is 
allowed to place, or cause to be placed, in any church (including 
exempt churches) or in any other sacred place, an unusual pic- 
ture. The Ordinary shall not approve sacred images which are 
to be exposed to the veneration of the faithful if they do not 
agree with the approved usage of the Church. The Ordinary 
shall never allow in churches and other sacred places representa- 
tions which are dogmatically incorrect, or are not executed with 
proper decency and respect, or may give to ignorant people an 
occasion of dangerous error. If the images exposed for public 
veneration are to be solemnly blessed, that blessing is reserved to 
the Ordinary, who may, however, delegate any priest to perform 
this duty (Canon 1279). 

An illustration of what unusual pictures are is given by the 
condemnation of pictures of the Blessed Virgin clad in priestly 
vestments.4? The Holy See watches over religious art and its 
productions. Thus, the Holy Office condemned the sacred images 
of a certain school of art, specimens of which were exhibited in 
the book entitled: ‘‘La Passion de Notre Seigneur Jesus Christ, 
par Cyril Verschaeve’’ (Librairie Nationale d’art et d’histoire, 
1920). These pictures must be removed from sacred places.* 

1307. Precious images—that is to say, those that are con- 
spicuous for their antiquity, art, or veneration—exposed for the 
public veneration of the faithful in churches and public oratories 

39 July 5, 1634; Gasparri, ‘‘ Fontes Cod. Jur. Can.,’’ I, 402. 


40 Holy Office, April 8, 1916 (Acta Ap. Sedis, VIII, 146). 
41 March 30, 1921 (Acta Ap. Sedis, XIII, 197). 


CANONS 1278-1284 73 


must, when in need of repairs, be restored only after obtaining 
the written consent of the Ordinary, who before giving the 
permission shall seek prudent and expert advice in the matter 
(Canon 1280). 

The Church is anxious to preserve the priceless images (paint- 
ings or statues) of Christian antiquity, and also those images 
which God’s merciful providence has used as an instrument of 
special favors and blessmgs. Wherefore, nobody may repair such 
images, when found in public churches and oratories, except with 
the written permission of the Ordinary of the place. In the 
churches and oratories of exempt religious organizations, these 
images may not be repaired without the special permission of the 
major superior. 


SPECIAL RULES ON PROMINENT RELICS AND IMAGES 


1308. Important relics and images of great value, and other 
relics or images which are honored in some church by great 
veneration of the people, cannot validly be disposed of, nor trans- 
ferred perpetually to another church, without the permission of 
the Apostolic See. Important relics of saints or beati are the 
entire body, or the head, arm, forearm, heart, tongue, hand, leg, 
or that part of the body in which the martyr suffered, provided it 
be entire and not small (Canon 1281). 

Important relics of saints or blessed may not be kept in pri- 
vate houses or in private oratories without explicit permission of 
the local Ordinary. Other relics may be kept with due honor in 
the houses of the faithful, or carried piously on their persons 
(Canon 1282). 


RELICS WHICH May Br ExXposep FOR PUBLIC VENERATION 


1309. Only those relics may be exposed for public veneration 
in any (even exempt) churches which are authenticated by docu- 
ment of a Cardinal, or a local Ordinary, or by another ecclesiastic 
who has by Apostolic indult the faculty to authenticate relics. 
The vicar-general cannot authenticate relics without a special 
mandate of the Ordinary (Canon 1283). The local Ordinary 
shall prudently withdraw from the veneration of the people those 
relics which he knows with certainty are not authentic (Canon 
1284). 


74 A PRACTICAL COMMENTARY 


If the documents of authentication of sacred relics have been 
lost through civil disturbances or for any other cause, the relics 
shall not be exposed for public veneration until the local Ordi- 
nary has given his decision; the vicar-general can give such 
approval by special mandate only. Relics venerated from ancient 
times are to continue to receive the same veneration, unless in 
particular cases it is established with certainty that they are 
false or supposititious (Canon 1285). The local Ordinary shall 
not permit (least of all in sermons, books, periodicals, or treatises 
intended for devotional purposes) the discussion of questions 
concerning the authenticity of sacred relics, especially when 
such discussions are based on mere conjectures, only probable 
reasons and prejudiced opinions (Canon 1286). 

In the matter of the public cult of sacred images and relics, 
the Church wants the local Ordinary to have complete control 
in all public places of worship. The Council of Trent, therefore, 
ruled that the exempt religious organizations cannot expose in 
their churches an unusual image or a relic not approved by the 
local Ordinary.*2. The same was again inculeated with reference 
to sacred images by Pope Urban VIII.* 


Re.tics Must Be ENCLOSED IN SEALED CASES 


1310. When relics are exposed, they must be enclosed in a 
case and sealed. Relics of the Holy Cross shall never be exposed 
to the veneration of the public enclosed in the same ease with 
relics of the saints, but must be placed in a separate case. With- 
out a special indult the relics of the blessed may not be carried in 
processions, nor exposed in any other churches than those to 
which the Holy See has given the faculty to say their Office and 
Mass (Canon 1287). 

The relics of the Holy Cross have always held a special place 
in the veneration of the Church. Hence the rule that other relics 
cannot be exposed in the same reliquary or case with the relic 
of the Holy Cross, because the relic of the Holy Cross is entitled 
to more profound veneration than that to which the relies of the 
saints are entitled. The rule of the Code on the veneration of the 

42 Sessio XXV, Decretum de Invocatione, Veneratione et reliquiis Sanc- 


torum et Sacris Imaginibus. 
43 Const. ‘‘Sacrosancta,’’ March 15, 1642; Gasparri, ‘‘Fontes,’’ I, 423. 


CANONS 1285-1289 75 


relics of the blessed, as distinguished from canonized saints, is 
the same as in the former law.*! 

1311. Any relics of the Holy Cross which the bishop may 
carry in his pectoral cross, become the property of the cathedral 
church at his death, for transmission to the succeeding bishop. If 
the deceased bishop had the government of several dioceses, the 
relic goes to the cathedral church of the diocese in which he died; 
if he died outside the diocese, the relic belongs to that diocese 
from which he last departed (Canon 1288). 

The regulation contained in Canon 1288 was made by En- 
cyclical Letters of the Cardinal Vicar of Rome at the order of 
Pope Leo XIII, March 25, 1889, because, as the Cardinal Vicar 
explains, it is getting more and more difficult to provide relics of 
the Holy Cross for the bishops, if they are allowed to dispose of 
them. Usually the bishops desire to have a relic of the Holy 
Cross, though they are not obliged to have it, and those who 
secure one are now required to leave it to their successor. With 
the case (which possibly may be very costly) they may do as 
they please, for, as the Cardinal Vicar explained, the only thing 
that is demanded is the transmission of the relic to the successor 
in the bishopric.*® 


Retics May Not Br Soup 


1312. It is forbidden to sell sacred relies. Ordinaries, deans, 
pastors and others having the care of souls shall see that sacred 
relics, particularly those of the Holy Cross, are not sold, espe- 
cially together with other inherited property or at auction sales, 
nor pass into the hands of non-Catholics. Rectors of churches, 
and others whose duty it is, shall zealously see that the relics are 
not in any way profaned, or destroyed through carelessness, or 
kept in a disrespectful manner (Canon 1289). 

The Sacred Congregation of Indulgences and Relics has for- 
bidden the purchase of relics even for the good purpose of rescu- 
ing them from the hands of some storekeeper who exposes them 
for sale. If anyone notices that relics which seem to be genuine 
are for sale in some store, he should inform the local Ordinary 
that he may take steps to stop this insult to religion.*® 


44 Sacred Congr. of Religious, Sept. 27, 1659, and April 17, 1660 (Decr. 
Auth., nn. 1130 and 1156). 

45 Collectanea de Prop. Fide, Il, n. 1699. 

46 December 21, 1878 (Decr. Auth., n. 443). 


76 A PRACTICAL COMMENTARY 


TITLE XVII 


OF SACRED PROCESSIONS 


1313. By the term sacred processions are meant the solemn 
supplications which are made by the faithful marching in order 
under the leadership of the clergy from one sacred place to 
another for the purpose of promoting the devotion of the people, 
or to commemorate God’s benefits and to thank Him, or to im- 
plore divine help. Ordinary processions are those held on fixed 
days of the year according to the rules of the liturgical books or 
the custom of the churches; extraordinary those appointed on 
other days for other public causes (Canon 1290). 

Processions are a very natural manifestation of the feelings — 
of the multitude, who thus express their joy, or grief, or fear. 
Transferred into the field of religion, they represent the out- 
pourings of the religious feelings of the people. The processions 
at the transfer of the bodies of saints, the procession on the feast 
of St. Mark, and those on the Rogation Days before the Ascension 
of our Lord, are very ancient.*? 


Corpus CHRISTI PROCESSION 


1314. Unless immemorial custom or the circumstances of 
places in the prudent judgment of the bishop demand otherwise, 
there shall be but one solemn and public procession through the 
streets of a town or city on the feast of Corpus Christi, and this 
should be conducted by the church first in dignity. In this pro- 
cession must take part all the secular clergy and the religious 
communities of men, even the exempt religious, and the confra- 
ternities of laymen. Regulars who live perpetually in strict 
enclosure, and those who are more than three miles from the town 
or city, are not bound to take part in the procession. The other 
parishes and churches, secular or religious, may during the octave 
institute their own processions outside their church; where there 
are several churches, the local Ordinary shall appoint a day for 
each and the hour and the course of each procession (Canon 
1291). 

There were no processions with the Blessed Sacrament in the 


47 Wernz, ‘‘Jus Decretal.,’’ ITI, n. 565. 


CANONS 1290-1293 77 


early days of the Church. After the establishment of the feast 
of Corpus Christi by Pope Urban IV,** the procession with the 
Blessed Sacrament on that feast was rapidly introduced every- 
where. The Council of Trent solemnly approved of the proces- 
sion and condemned the opinion of those who said that such 
procession was improper.*® In the United States where the 
Catholics generally live among an exceedingly large non-Catholic 
population, public religious processions of any kind are rare. 
Permission can be obtained without much difficulty in most 
places, and adequate police protection would be available, but it is 
generally not thought advisable to have public processions. The 
Corpus Christi procession is usually confined within the walls of 
the churches. Among the notable public processions are the 
great Holy Name Rallies that have become annual affairs in 
some of our cities. 


OTHER PROCESSIONS 


1315. The local Ordinary with the advice of the Cathedral 
Chapter (or diocesan consultors) may for a public cause order 
extraordinary processions at which, just as at the ordinary ones, 
all those spoken of in Canon 1291, § 1, must take part (Canon 
1292). 

1316. The religious, both exempt and non-exempt, cannot hold 
processions outside their churches and cloisters without the per- 
mission of the local Ordinary, except in the case mentioned in 
Canon 1291 (Canon 1293). 

This Canon has reference to churches of religious to which na 
parish is attached, for if they have a parish they are entitled to 
hold the ordinary processions demanded or allowed by the 
liturgy. Within the church and the church yard they may hold 
processions, and, if there is no church yard or cloister around the 
church, they may go outside the church but must keep close to 
the church building.*° 

1317. Neither a pastor nor anyone else is allowed without 
permission from the local Ordinary to introduce new processions 
or to transfer or abolish the usual ones. At the processions 


48 Clementine, ce. unicum, De Reliquiis et Veneratione Sanctorum, lib. 
RE stit ai 6: 

49 Sessio XIII, De Eucharistia, cap. 5, can. 6. 

50 Sacred Cong. of Rites, September 28, 1658 (Decr. Auth., n. 1096). 


78 A PRACTICAL COMMENTARY 


proper to any church all the clergy attached to that church must 
be present (Canon 1294). 

Stopping all abuses that may have crept in, the Ordinaries 
shall see that the processions are performed in orderly fashion, 
and with the modesty and reverence which are so proper to such 
pious and religious acts (Canon 1295). 


TITLE XVIII 


OF SACRED FURNISHINGS 


1318. Saered furnishings, especially those which must in 
accordance with the liturgical laws be blessed or consecrated and 
are used in the public worship, are to be carefully preserved in 
the sacristy of the church, or in some other safe and decent place, 
and must not be used for profane purposes. As prescribed by 
Canon 1522, §§ 2-3, an inventory shall be made and carefully 
kept of all sacred furnishings. The material and form of sacred 
furnishings must be in conformity with the liturgical laws, with 
ecclesiastical tradition, and as closely as possible with the laws 
of sacred art (Canon 1296). 

Those who are, by the law of Canon 1186, obliged to attend 
to the repairs of the church edifice, must also provide the furnish- 
ings needed for divine worship, unless other provisions have been 
made (Canon 1297). 


OWNERSHIP OF SACRED FURNISHINGS OF A DECEASED CARDINAL 


1319. The sacred furnishings and all other objects per- 
manently devoted to divine worship in the possession of a de- 
ceased Cardinal who had his domicile in the City of Rome, though 
he was a suburbicarian bishop or an abbot nullius, become the 
property of the Papal sacristy, no matter by what kind of revenue 
they were acquired, unless the Cardinal has donated or willed 
them to some church, public oratory, pious place, or to an eccle- 
siastical or religious person. His rings and pectoral crosses, even 
those with sacred relics, are excepted from this rule of seizure 
by the Papal sacristy. It is to be desired that the Cardinal who 
wants to make use of the faculty to donate or will his sacred 





CANONS 1294-1300 79 


furnishings, should leave at least a part of them to the churches 


of which he held the title, administration or commenda (Canon 
1298). 


OWNERSHIP OF SACRED FURNISHINGS OF A DECEASED BISHOP 


1320. The sacred furnishings of a deceased residential bishop, 
even if a Cardinal, accrue to his cathedral church, with the excep- 
tion of the rings, pectoral crosses, including those with relies, and 
all sacred furnishings of any kind which can be proved to have 
been acquired by the deceased bishop with other than the funds 
of the diocese, and have not been turned over to the proprietor- 
ship of the church. If the bishop has a pectoral cross containing 
a relic of the True Cross, Canon 1288 demands that the relic be 
transmitted to the successor. 

If the deceased bishop has governed two or more dioceses in 
succession, or if he presided simultaneously over two or more 
dioceses which had been united or which were entrusted to him 
for permanent administration (each diocese having its own 
proper cathedral church), the sacred furnishings which are 
known to have been acquired by the funds of one only of these 
dioceses shall accrue to the cathedral of that diocese; otherwise 
they must be divided equally among the various cathedral 
churches, provided the revenues of the dioceses are not divided 
but constitute permanently only one mensa episcopalis, If the 
revenues of each cathedral are kept separate, the sacred furnish- 
ings are to be divided between the several cathedral churches in 
proportion to the amount of revenue the bishop has received from 
each diocese, and the length of time he has presided over it. 

The bishop is obliged to make an inventory in authentic form 
of the sacred furnishings, in which account he shall accurately 
state when they were acquired, and point out distinctly those 
furnishings which he did not buy with church funds, but which 
were either bought with his own money or acquired by personal 
donation; otherwise the law presumes that all were acquired by 
church funds (Canon 1299). The rules of Canon 1299 are to be 
applied also to a cleric who obtained a secular or religious bene- 
fice in any church (Canon 1300). 


80 A PRACTICAL COMMENTARY 


THE PRECEDING PROVISIONS Must BE MapgE BINDING UNDER THE 
Civi, Law 


1321. Cardinals, residential bishops and other clerics holding 
benefices have the obligation to take care that by last will, or 
other document drawn up in the form recognized by civil law, 
the provisions made in Canons 1298-1300 may have effect also in 
the civil courts. Wherefore, they shall in good time appoint, in 
a manner recognized by civil law, a person of unblemished char- 
acter, according to the rule of Canon 880, who at their death shall 
take possession not only of the sacred utensils, but also of all 
books, documents, and all other goods belonging to the church, 
and found in their house, and turn them over to the proper per- 
sons (Canon 1801). 


CarE AND Use or SAcRED FURNISHINGS 


1322. The rectors of churches and all others to whom the 
care of sacred furnishings is entrusted shall carefully provide 
that they are preserved in good condition (Canon 1302). 

The cathedral church must furnish the bishop gratuitously 
with the sacred furnishings and all the other things he needs for 
the celebration of Holy Mass and other pontifical functions, even 
when he celebrates privately, not only in the cathedral church, 
but also in other churches of the episcopal city or its suburbs. 

If a church is very poor, the Ordinary may permit that a 
moderate fee be demanded of priests saying Holy Mass there for 
their own convenience, for the use of the sacred furnishings and 
the other things needed for the celebration of Mass. The bishop 
—but not the vicar-capitular or the vicar-general without a 
special mandate—has the right to determine the amount of this 
fee, and nobody (not even exempt religious) are allowed to 
demand a larger fee. The bishop should fix the amount of the 
fee for the whole diocese, if possible in a diocesan synod, or 
outside the synod with the advice of the Chapter (Canon 1303). 


Persons Wuo HAVE THE PowErR TO BLESS SACRED FURNISHINGS 


1323. The power to bless those sacred furnishings which 
must, according to the liturgical laws, be blessed before they are 
used for their purpose, is given to the following: 


CANONS 1301-1304 81 


(1) All Cardinals and bishops; 

(2) Local Ordinaries who are not consecrated bishops, for 
the churches and oratories of their own territory ; 

(3) Pastors, for the churches and oratories located within 
their parishes, and rectors of churches for their churches; 

(4) Priests delegated by the local Ordinary within the limits 
of the delegation and the jurisdiction of the delegating Ordinary ; 

(5) Religious superiors, and priests of the same organization 
delegated by them, for their own churches and oratories and for 
the churches of nuns subject to the regular superior (Canon 
1304). 

The faculty of blessing the sacred furnishings is local, so that 
the power of all the persons enumerated here (except Cardinals 
and bishops) can be exercised only in certain defined places or 
territories. Formerly the Sacred Congregation of Rites had 
ruled that, without an Indult of the Holy See, the bishop could 
not delegate the faculties of blessing furnishings which are re- 
served to him by the Rituale Romanum.®! The Code gives him 
the power to delegate priests. The regular form of faculties 
issued to the bishops of the United States gives them further 
powers to delegate priests for the performing of consecrations 
(i.e. blessings which require the anointing with holy chrism, 
such as the consecration of altars and chalices). Without an 
Apostolic Indult, the bishop cannot delegate the powers attached 
to the episcopal order, as is explicitly stated in the law of the 
Decretals.*? 


Loss OF CONSECRATION OR BLESSING OF THE SACRED FURNISHINGS 


1324. Sacred furnishings that have been blessed or conse- 
crated, lose their blessing or consecration: 

(1) if they have suffered such damage or change that they 
have lost their original shape and are no longer fit for their 
purpose ; 

(2) if they have been used for unbecoming purposes, or have 
been exposed for public sale. 

Chalices and patens do not lose their consecration when the 
gold-plating wears off or is renewed, but there is a grave obliga- 


51 April 2, 1875 (Decr. Auth., n. 3343). 
52 Decretal. Greg. IX, c. 9, De Consecr. Eccl, vel altaris, lib, III, tit. 40. 


82 A PRACTICAL COMMENTARY 


tion to have the gold plating renewed when worn out (Canon 
1305). . 

Of the two ways in which sacred furnishings lose their conse- 
eration or blessing, the first was commonly admitted before the 
promulgation of the Code. The second cause of desecration of 
the sacred furnishings is new in the law of the Church.” For- 
merly the Sacred Congregation of Rites had ruled that the chalice 
and paten lose their consecration upon the renewal of the gold 
plating.** When chalice and paten need re-plating, they should 
not be broken or made unfit for use, for the purpose of depriving 
the sacred vessels of the consecration, before giving them into 
the hands of the firm which does the re-plating. The Sacred Con- 
eregation of Rites has forbidden this abuse.®®> The priest should 
get permission from the bishop to give the sacred vessels to the 
business house for repairs. To facilitate matters, the bishops 
authorize certain firms to do the gold-plating of chalices and 
patens, and the priest may give to these firms chalices and patens 
for re-plating.*® 


THE HANDLING OF SACRED F'URNISHINGS 


1325. Care must be taken that the chalice and paten are not 
touched by others than clerics or by those who have their custody ; 
the same rule applies to purificators, palls, and corporals which 
have been used in Holy Mass and are still to be washed. The 
purificators, palls, and corporals used in Holy Mass shall not be 
given to lay persons (even though they are religious) to be 
washed until they have first been washed by a cleric in major 
orders; the water of the first washing shall be poured into the 
sacrarium, or, if there be none, into the fire (Canon 1306). 

Are ‘‘those who have the custody of the sacred furnishings’’ 
clerics exclusively, or does that phrase include laymen and reli- 
cious, Sisters or lay brothers, who have charge of the sacristy? 
Writing before the promulgation of the Code, Wernz says that 
in the course of time the ancient rigor in the matter of touching 
the sacred vessels was relaxed, so that lay brothers and religious, 


53 Decretal. Greg. IX,.c. 2, De Sacramentis non iterandis, lib. I, tit. 16; 
Wernz, ‘‘Jus Decretal.,’’ III, n. 504. 

54 June 14, 1845, and May 9, 1857 (Decr. Auth., nn. 2889 and 3042). 

55 April 23, 1822 (Decr. Auth., n. 2620). 

56 Suffragium ad Decretum No. 2620 (Deer. Auth., IV, p. 223). 


IL Oe 


ee, ee ee eee 


CANONS 1805-1307 83 


Sisters and laymen acting as sacristans were permitted to touch 
the sacred vessels.*’ Blat °* and Vermeersch-Creusen ** apply 
the above phrase also to lay sacristans.. The wording of the Code 
—‘‘nisi a clericis vel ab iis, etc.’’—seems to indicate that others 
than clerics may touch them, if they have the custody of the 
sacred utensils, 

The washing of purificators, palls, and corporals which have 
been used in Mass is properly the office of subdeacons, as is 
evident from the address of the bishop to the candidates for that 
order.°° The Sacred Congregation of Rites declared that the 
bishop cannot empower nuns or other Sisters to do the first 
washing.®** In the early centuries of the Church the deacons, 
together with the inferior ministers, had the duty of washing the 
sacred linens, and the manner how to proceed was detailed in 
the Decretum Gratiant.? 


TITLE XIX 


OF VOWS AND OATHS 


CHAPTER I 


OF VOWS 


1326. A vow is a free and deliberate promise to God to per- 
form a possible and higher good, and must be fulfilled by reason 
of the virtue of religion. All persons who have sufficient use of 
reason in proportion to the object of the vow, may make a vow 
unless they are forbidden by law to do so. A vow made from 
grave and unjust fear is invalid by law (Canon 1307). 

The idea of promising God some special good work or sacri- 
fice, either to move the Heavenly Father to grant some special 
favor, or to thank Him for favors received, or finally to show 
one’s extraordinary desire to promote the honor of God, seems 
very natural to the human heart. We find reference to vows or 
promises throughout the pages of the Old Testament, which also 

57 Jus Decretal., III, n. 503, note 7. 

58 Commentarwm, III, n. 177. 

59 Hpitome, II, n. 635. : 

60 Pontificale Romanum (De Ordinatione Subdiaconi). 


61 September 12, 1857 (Decr. Auth., n. 3059). 
62 ¢. 40, Dist. I, De Consecratione. 


84 A PRACTICAL COMMENTARY 


points out to us the seriousness of making a promise to God: ‘‘If 
thou hast vowed anything to God, defer not to pay it. For an 
unfaithful and foolish promise displeaseth Him’’ (Eecles., v. 3). 
That the object of the vow must be possible to the one making 
the pledge to do it, and that it must be something which tends 
to the honor of God (bonwm), is evident, for otherwise the vow 
would not honor God, but would rather be an insult. As nobody 
can reasonably promise anything unless he knows the object of 
his promise, one’s knowledge must be in proportion to the object 
promised. The very nature of the vow demands that one be 
free—not forced to make the promise by the violence or threats 
of other persons. The Code says that one must be free from 
‘‘unjust’’ fear. May anyone justly force another to make a 
vow? If a person is free to make or not to make a vow, is it 
not an injustice to interfere with his liberty by threatening or 
otherwise inducing him against his will to make a vow? If 
someone obliges oneself to make a vow (e.g., in the former 
Canon Law, if the wife gave her husband leave to join a religious 
community, she could be obliged by the bishop to make a vow 
of chastity), the obligation can be urged. With reference to the 
question of force and fear in the making of a vow, commenta- 
tors on the Code discuss the distinction between unjust fear 
which is the cause, and unjust fear which is the occasion of the 
making of the vow. The line of demarcation between cause and 
occasion is by no means easy to determine in a practical case. 
Authors say that, when the unjust fear is the cause of the vow, 
it is no vow at all; but that the vow is valid, if the fear is the 
occasion merely of the taking of the vow.® It seems to us that 
God does not want an offering on the part of man unless it is 
made with absolute freedom, for the human sense of propriety 
and fairness would prompt us to refuse an offering made to us by 
a person who was not fully free in his action. If that sense 
of propriety of the human heart is right, we may safely assert 
that God thinks the same way. 


TERMINOLOGY IN THE MATTER OF Vows 


1327. A vow is.called public, if it is accepted in the name 
of the Church by a legitimate ecclesiastical superior; otherwise 


63 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 637. 





CANONS 13808-1309 85 


it is private. A vow is called solemn, if recognized as such by 
the Church; otherwise it is somple; it is reserved, if dispensation 
from it can be given only by the Holy See. A vow is personal, 
if an act of the person making the vow is promised; real, if 
some object is promised; mixed, if it partakes of the nature of 
both personal and real (Canon 1308). 

The vows in religious communities approved by the compe- 
tent ecclesiastical authority are public vows, because the superior 
or superioress is entitled by the law of the Church to accept 
the vows in the name of the Church. The distinction between 
solemn and simple vows is not one of the essence of the vows 
as such, but rather a distinction as to the juridical effects of 
these vows, for Pope Boniface VIII states in one of his Deeretals 
that the solemnity of the vows is created (literally ‘‘invented’’) 
exclusively by the law of the Church.** Canon 1309, which will 
be discussed presently, states what vows are reserved to the 
Holy See. Personal vows imply an act on the part of the one 
making the vow (e.g., to fast on certain days, to say certain 
prayers, to be obedient to the religious superiors, etc.) ; real 
vows imply that something real is promised (e.g., the donation 
of land or other real or personal property to some good cause) ; 
a vow is mixed, if besides giving the property the person also 
promises to perform some personal good work (e.g., labor, prayer, 
ete.). 


RESERVED Vows 


13228. Only two private vows are reserved to the Holy See: 
the vow of perfect and perpetual chastity and the vow to enter 
a religious organization in which solemn vows are taken, pro- 
vided these vows were made unconditionally and after the com- 
pletion of the eighteenth year of age (Canon 1309). 

The Code speaks of private vows only in this chapter on 
vows; the vows made in religious communities approved by the 
Church are public vows, and these are discussed by the Code 
in its treatise on religious. To ascertain who has the power to 
release from these vows, one must consult the constitutions of 
the organizations concerned. Among reserved vows before the 

promulgation of the Code there were (besides the two mentioned 
~ in Canon 1309) also the vows to make a pilgrimage to the tomb 


64 Tiber Sextus, ec. unicum, De voto et voti redemptione, lib. IIT, tit. 15. 


86 A PRACTICAL COMMENTARY 


of the Holy Apostles at Rome, to the Holy Land, and to the 
tomb of the Apostle St. James at Compostella in Spain. All 
these are enumerated by Pope Sixtus IV in his Constitution 
‘‘Btsi Dominici.’’ °° That the vows were reserved to the Holy 
See only when they were made absolutely (that is to say without 
any conditions), was the teaching of canonists before the Code 
became law. The age required by the Code to make a vow 
reserved to the Holy See, is new. The power to release from 
other private vows is treated in Canons 1312 and 1313 of the 
Code. 


EXTENT OF THE OBLIGATION OF A VOW 


1329. A vow,-as such, imposes an obligation on nobody except 
the person who makes it. The obligation of a real vow descends 
to the heirs, and so does the mixed vow in so far as it is real 
(Canon 1310). 

As a vow is a strictly personal affair, nobody can by his 
vow put the obligation of the vow on another. Thus, if a mother 
makes a vow to offer her child to the service of God, the child 
is not affected by that vow, and does not lose his liberty in the 
choice of his state of life. In Europe there have been instances 
where a town or city (that is, a representative majority of the 
people) made a vow to keep certain days as holydays of obli- 
gation, or to keep fast and abstinence on certain days, and this 
was done with the approval of the bishop of the diocese. The 
question arose whether all the people of such a town are bound, 
and whether the obligation descends to future generations. The 
Holy See answered that only those people who actually made 
the vow are bound by it, and that the obligation does not descend 
to future generations.® 

The obligation of a real vow is considered by the Church 
to attach to one’s goods and property. Wherefore, at the death 
of the person who had attached this burden to his property, the 
heirs who succeed him in the possession of his goods and prop- 
erty are under obligation to fulfill the vow. There is a dif- 
ference of opinion about the nature of the obligation of the 
heirs—that is, whether the binding foree comes under the virtue 


65 Extravagantes Communes, ¢c. 5, De penitentiis et remissionibus, lib. 
Vy tits 2. 

66 Sacred Cong. of Rites, November 19, 1650 and June 23, 1703 (Decr. 
Auth., nn. 932 and 2113). 





CANONS 1310-1311 87 


of religion or of justice. This controversy existed even before 
the Code, because also formerly a real vow was considered to 
attach to the property of the person making the vow. The Code 
states that the obligation of the vow descends to the heirs, and 
since it is certain that the obligation arises from the virtue of 
religion, it follows that by the same virtue the heirs are bound 
to fulfill the obligation. For this reason the Code says that a 
vow ratione sui (by reason of itself) obliges the person only who 
makes the vow, but, ratione objecti cui inheret obligatio (by 
reason of the object to which the obligation attaches), it can 
bind others.*7 The same is to be said concerning a mized vow 
in reference to the part that is real. 


Various WAYS IN WHICH THE OBLIGATION OF A Vow CREASES 


1330. The vow ceases in the following cases: when the time 
expires which was attached to the vow for the ending of the 
obligation; by substantial change of the matter promised; by 
non-verification of the condition upon which the vow depended, 
or by cessation of the final motive from, or the purpose for 
which the vow was made; by annulment, dispensation, or com- 
mutation (Canon 1311). 

The time may be made a condition in one’s vow in such a 
manner that one intends to bind oneself for a specified time 
only, and in such a ease the vow ceases with the lapse of the 
specified time. A substantial change in the matter promised 
(whether that matter is the offering of certain goods or the 
performance of personal acts), may amount to a moral impos- 
sibility to fulfill the vow. Ifa vow is made to depend on a condi- 
tion—if, for instance, one vows to give a hundred dollars to the 
poor if he gets the position for which he has applied, but fails to 
get it—the vow does not hold because the condition is not veri- 
fied. Similarly, if the final motive, or the only purpose, of the 
vow ceases, the vow ceases also; for instance, one vows to say five 
decades of the rosary daily until one’s mother has regained her 
health; if she gets well, or if she dies, the obligation ceases. 
These reasons for the cessation of the vow are inherent in the 
nature of the human act; the other three causes for which a 
vow ceases, namely, annulment, dispensation, commutation, are 

67 Vermeersch-Creusen, ‘‘Epitome,’’ IT, n, 641, 


88 A PRACTICAL COMMENTARY 


extrinsic causes for the cessation of a vow; they are spoken of 
in the following three Canons of the Code. 


ANNULMENT OF VOWS 


1331. He who legitimately exercises the domestic power over 
the will of the person making a vow, can validly annul his or 
her vows, and for good cause also licitly, so that the obligation 
never revives afterwards. A person who has indeed no power 
over the will of the one making the vow, but has power over the 
matter of the vow, can suspend the obligation of the vow for such 
time as the fulfillment of the vow would be to his detriment 
(Canon 1312). 

The domestic power (potestas dominativa) is the power of 
a father or a master over the members of the family or house- 
hold. That power is natural and inherent, not ereated by the 
will of man such as is, to a certain extent at, least, the pub- 
lie or governmental power. The power of the person who has 
domestic power to annul all vows of his subjects is to be derived 
from ecclesiastical law rather than from the natural law, for the 
arguments of authors who ascribe this power to the natural law 
are not convincing. In man’s relation to God, and in his re- 
sponsibilities towards the Creator, a child who has just come to 
the age of discretion is on the same footing as any free and 
independent person. Where there is question of a vow that 
interferes with the service or other duties which a member owes 
to the head of the family, one may rightly say that the natural 
law excludes such a vow, because it is beyond the power of the 
subject to promise something to which another has a legitimate 
claim. There is no general law of the Church which gave the 
head of the family the power to annul all vows of members of 
the family, but the chapter which the Decretum Gratiani took 
from a particular council °° has in the course of time won uni- 
versal recognition. According to this Decree of Gratian, the 
father can annul the vows which his children make before the 
age of puberty. The Code amplifies the domestic power by 
placing no restriction of age at all; it simply rules that those 
who have domestic power over the will of others can annul the 
vows of their subjects. Nevertheless, one must conclude from 


68¢, 2, C. XX, qu. 2. 





CANONS 1312-1313 89 


Canon 89 that the children of a family are subject to the 
domestic power merely during their minority (before they are 
twenty-one years of age), for, when they are of age, they have 
the free exercise of their rights. In religious organizations the 
professed members are by the law of the Church placed under 
the power of the legitimate superior or superioress to such an 
extent that, according to the common opinion of canonists, the 
superior can annul their private vows.°® 

1332. A limited power to suspend the obligation assumed by 
private vows is given by the Code to those who have power over 
the subject matter of the vow. Thus, persons who are of age 
and have therefore the free exercise of their rights, but who have 
made agreements for service in a family or a business house, 
have given to another party certain rights over them. If such 
persons make vows which interfere with the rights of the other 
party, the latter can suspend the vows as long as they interfere 
with his rights. 


DISPENSATION FROM PRIVATE Vows 


13338. Vows which are not reserved may be dispensed for a 
good reason, provided the dispensation does not violate the ac- 
quired rights of a third party: . 

(1) By the local Ordinary, who may dispense not only his 
subjects but also transients; 

(2) By the religious superior of an exempt clerical organi- 
zation, who may dispense not only the professed religious, but 
also novices, and other persons who stay day and night in the 
religious house for reason of service, education, sickness, or as 
guests, as enumerated in Canon 514, §1; 

(3) By persons who have received the delegated faculty from 
the Holy See to dispense with vows (Canon 1313). 

The Code speaks of the power of jurisdiction by which the 
Church may, in the name of Christ and for a good reason, free 
from obligations due to God. The law places one restriction 
on the power of dispensation granted to local Ordinaries, to 
religious superiors of exempt organizations, and to individual 
priests by Papal indult: they cannot release from vows, if such 
a release injures the acquired rights of a third party. A promise 


69¢, 2, C. XX, qu. 4. Cfr. Schmalzgriiber, ‘‘Jus Eccl.,’’ VII, 148. 


90 A PRACTICAL COMMENTARY 


made to a third party and accepted by him may be confirmed 
by a vow. From this kind of a vow release can be sranted by 
the Holy See alone, for the Supreme Pontiff can, in virtue of 
his power of eminent domain, take away the rights of an indi- 
vidual, when such rights are based on, or intimately connected 
with, religion. On this point there has been some dispute as 
to the power of the Supreme Pontiff in a case where the goods 
or rights in question are not ecclesiastical goods. Nevertheless, 
in view of the intimate connection of these rights with a matter 
over which the Supreme Pontiff has power, the right seems to 
be merely accessory, and therefore ‘‘accessorium naturam sequi 
congruit principalis.’’ 

1334. The power of the local Ordinary extends not only over 
the subjects of his diocese (that is to say, over those who have 
in his diocese a domicile or quasi-domicile), but also over stran- 
gers who visit his diocese. The latter point was disputed before 
the promulgation of the Code. The local Ordinary can delegate 
the power of dispensing from non-reserved vows because it is 
an ordinary power (cfr. Canon 199). The same is to be said 
of the power of religious superiors of exempt clerical organi- 
zations with reference to the persons over whom the power of 
dispensation is granted them by the Code. Since the Code uses 
the term ‘‘superiors’’? without any limitations, local superiors 
are included. By concession of the Holy See, priests may be 
authorized to dispense from vows. This faculty has been fre- 
quently given to priests individually, and has also been given, 
by way of a permanent privilege, to the confessors of some 
religious organizations. ‘‘From the Compendia Privilegiorum 
of the Dominicans, Franciscans, Carmelites, and Jesuits,’’ says 
Reiffenstuel, ‘‘it is evident that their confessors can release from 
all non-reserved vows.’’*! These privileges still remain since it 
is not certain that even privileges acquired by communication 
at a time prior to the promulgation of the Code are revoked 
by Canon 613.7 

CoMMUTATION OF VOWS 


1335. A good work promised in a non-reserved vow may be 
commuted to a better, or an equal one, by the individual him- 


70 Regula Juris 42 in Sexto, in Liber Sextus Bonifacit VIII, lib. V. 

71 Reiffenstuel, ‘‘Jus Canonicum,’’ lib. ITT, tit. 34, n. 39. 

72 Blat, ‘‘Commentarium,’’ III, n, 186; Vermeersch-Creusen, ‘‘Epi- 
tome,’’ II, n. 644. 





CANONS 13814-1315 91 


self who made the vow; but it can be commuted to a lesser 
work only by those to whom the power of dispensation is given 
in Canon 1313 (Canon 1314). 

It has been the common opinion of canonists and moralists 
that a person may on his own initiative change a private, non- 
reserved vow by substituting a better work for the work prom- 
ised. The changing of the object promised into another object 
‘or work of equal value, however, was not allowed under the 
former law, but now the Code grants this liberty. The faculty 
to change by private authority the object promised for a better 
or an equally good work, applies to non-reserved vows only, for 
Canon 1314 speaks exclusively of non-reserved vows. Vermeersch- 
Creusen hold that, even in reserved vows, one may on one’s 
own initiative change the promised work for one that is evi- 
dently better. This is not certain, for under the old law canon- 
ists did not agree on the question whether one could change by 
private authority reserved vows into something better.7* The 
faculty to dispense from vows includes the power to commute 
Vows. 


Vows MApbrE BEFORE PROFESSION IN A RELIGIOUS COMMUNITY 


1336. Vows which were made before profession in a religious 
community are suspended as long as the person remains in the 
religious organization (Canon 1315). 

Before the Code, it was certain that all private vows made 
before solemn profession in a religious order were wiped out 
by the solemn profession, and this doctrine was based on the 
law of the Decretals.** Simple profession did not remove or 
suspend the obligation of previous vows, unless the laws of a 
particular organization gave such force to its simple vows. Thus, 
Lehmkuhl states that the simple vows in the Society of Jesus 
suspend private vows. The Code modifies the former law in 
two points: first, by denying to any religious profession (solemn 
or simple) the power to annul permanently all former vows; 
secondly, by extending the suspension of private vows to both 
solemn and simple vows. There is no doubt, however (as Ver- 


73 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 645; Reiffenstuel, ‘‘Jus 
Can.,’’ lib. ITI, tit. 34, n. 44. 
74 Decretales Greg. IX, ¢. 4, De voto et vott redemptione, lib. ITI, tit. 34, 


92 A PRACTICAL COMMENTARY 


meersch-Creusen remark), that the person who makes profes- 
sion of any kind of vows in a religious community can, by his 
will and intention, commute all his private vows into the re- 
ligious profession under the general rule of Canon 1314 con- 
cerning the commutation of vows.” 


CHAPTER II 
OF OATHS 


1337. An oath, which is an invocation of the divine name 
in witness of the truth, may not be taken except with veracity, 
prudence, and justice. An oath which the Canons of the Code 
demand or permit, cannot validly be taken by proxy (Canon 
1316). 

To call upon God to witness the truth of one’s testimony 
or statements, is a very ancient practice, and was indeed in 
vogue long before the Christian religion came into existence. 
The value of the oath to prove facts or statements depends to 
a great extent on the character of the person taking the oath. 
It may be said that a person with an average amount of faith 
in God is moved by an oath to be more truthful and exact in 
his statements, while he might not be so scrupulous to tell the 
truth if it was merely a question of deceiving men. 

An oath must be truthful; it must be taken with discretion 
(not lightly for any trifling affair), and it must be just (that 
is to say, morally right). The positive rule of the Code demands 
that an oath be taken personally, whenever the Canons require 
or permit the taking of an oath. In itself, an oath certainly 
may be taken by proxy. 


EFFECT oF OATHS 


1338. The person who has freely sworn to do something, is 
bound by a special obligation of religion to accomplish what he 
has promised under oath. An oath extorted by violence or 
grave fear is valid, but a release from it may be given by the 
ecclesiastical superior. An oath, taken without violence or de- 
ceit, by which a person renounces some private good or favor 
given him by law itself, must be observed whenever it does 
not involve the ruin of the soul (Canon 1317). 


75 Epitome, II, n. 646. 





CANONS 1316-1318 93 


If the taking of the oath is a human act (that is to say, 
taken with due knowledge and at least the essential freedom of 
the will), the oath is valid, though the person was intimidated 
and took the oath only because of threats and fear. Neverthe- 
less, a person who was unjustly intimidated has been wronged, 
and therefore the Code provides that the ecclesiastical superior 
may release from such oaths. The reader will notice that, in 
Canon 1307, the Code stated that vows made out of grave fear 
unjustly inflicted are automatically invalid. Oaths made under 
the same circumstances are not invalidated by the Code. The 
same difference between vows and oaths existed in the former 
law, and Reiffenstuel explains this difference by the fact that 
vows are not taken so frequently, and there is thus not the 
same danger that one would claim his vow to be invalid because 
of force or fear; on the other hand, oaths are often demanded 
in law, and, in order to prevent unfounded claims of invalidity, 
the law does not declare them ipso facto void, but wants the 
force and fear proven by the one who took the oath, whereupon 
the superior will grant the release.”¢ 

The last part of Canon 1317 modifies the principle of the 
Code which generally upholds the validity of oaths made out 
of grave fear unjustly inflicted, for, if one renounces a private 
good or favor granted by the law itself, renunciation by oath 
is not valid unless it is made freely, without violence or deceit. 


NATURE OF PRomIssoRY OATH 


1339. A promissory oath partakes of the nature and econdi- 
tions of the act promised by oath. If an act which involves 
directly the injury of others, or prejudices the common weal or 
one’s eternal salvation, is confirmed by an oath, the act does 
not thereby acquire any justification (Canon 1318). 

Since the oath follows the nature of .the act to which it is 
added, a promise under oath is invalid if the promise is inad- 
missible. Moreover, all circumstances and conditions which 
invalidate a promise invalidate also the oath attached to such 
promise. An oath cannot be made a bond of iniquity, as the 
law of the Decretals puts it.” Hence, any acts which are 


76 Reiffenstuel, ‘‘ Jus Can.,’’ lib. I, tit. 40, nn. 58 and 59. 
77 Liber Sextus, c. 1, De consuetudine, lib. I, tit. 4. 


94 A PRACTICAL COMMENTARY 


opposed to a duty towards God or our neighbors (individually 
or as a society) or to the good of one’s own soul, cannot be 
the subject of a promissory oath, and if by mistake or malice 
they are made the subject of such an oath, the oath is null 
and void. 

CESSATION OF A PRomISssORY OATH 


1340. The obligation assumed by a promissory oath ceases: 

(1) if it is remitted by him in whose favor the oath was 
made ; 

(2) if the object promised by oath has changed substan- 
tially, or if changed circumstances have made the oath either 
sinful, or altogether a matter of indifference, or finally an obstacle 
to a higher good; 

(3) if the final purpose, or condition under which the oath 
was taken, fails; 

(4) by annulment, dispensation, or commutation, as speci- 
fied by Canon 1320 (Canon 1319). 

The Code stated above (in Canon 1318) that in a promissory 
oath the promise is primary and the oath secondary, and that 
the oath shares in the nature and conditions of the promise. 
Canon 1319, nn. 1-3, is an application of this principle. The 
manner in which the authority of the Church releases from a 
valid promissory oath, is indicated in Canon 1819, n. 4, and 
is further discussed in Canon 1320. 


ANNULMENT, DISPENSATION, AND COMMUTATION OF PROMISSORY 
OATHS 


1341. Persons who have the power to annul, dispense or 
commute vows, have the same power also over promissory oaths; 
if, however, the dispensation from an oath involves an injury 
to others, and these persons refuse to remit the obligation, the 
oath can be dispensed from only by the Holy See on account of 
the necessity or interest of the Church (Canon 1320). 

In the dispensation and commutation of vows the distinction 
between reserved and non-reserved vows has to be considered ; 
but in the ease of promissory oaths no such distinction has to 
be made, for the Code has no reserved oaths. When a third 
party has acquired a right by acceptance of the promise made 
to him under oath, nobody except the Supreme Authority can 


CANONS 1319-1321 95 


release from the oath without the consent of the party who 
accepted the promise. Some commentators urge the right of 
the third party to such an extent that they regard the person 
making the promissory oath as bound, even though a change of 
circumstances makes the oath a hindrance to a greater spiritual 
good, provided the subject of the promise remains ‘‘aliquid 
honestum.’’ They argue from Canon 542, which, in cases in 
which the taking of the oath is sanctioned by the law of the 
Holy See, declares invalid the reception into the novitiate of a 
religious community of an applicant who has taken an oath to 
serve the mission or the diocese. However, an individual ex- 
ception does not destroy the general principle for the cessation 
of promissory oaths, as laid down in Canon 1319, n. 2.78 


INTERPRETATION OF OATHS 


1342. An oath must be strictly interpreted according to law 
and according to the intention of the person taking the oath— 
or, if the latter should act deceitfully, according to the intention 
of him to whom the oath was made (Canon 1321). 

In interpreting an oath, one must adhere closely to the words 
by which the oath was expressed, and not extend them beyond 
their plain meaning. If the meaning of words used is doubtful, 
the intention ought to be considered. The rules of law about 
oaths are understood to govern every oath. It is evident that 
nobody can make a valid oath to do something forbidden by 
law. If a person renounces a favor which the law grants to him 
personally, and he does so with full knowledge of his right and 
by his own free will, he is bound by the oath, as Canon 1317 
declares. In virtue of Canon 72, a private individual may not 
renounce a privilege granted to a community, dignity or place. 

If a person acts deceitfully in confirming by oath something 
in which a third party is concerned (for instance, a contract), 
the intention of the one to whom the oath was made prevails, 
on the supposition that his intention was manifested to the other 
party either explicitly or implicitly by the nature of the agree- 
ment. Likewise, if the legitimate authority demands a statement 
under oath, the person taking the oath deceitfully is bound by 
the intention of the authority to whom the oath was made. 


78 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 653. 


PART FOUR 


OF THE TEACHING AUTHORITY OF THE 
CHURCH 


1343. Christ our Lord confided to the Church the deposit of 
faith, in order that she, with the perpetual assistance of the 
Holy Ghost, might faithfully preserve and expound the revealed 
doctrine. Independently of any civil power whatsoever, the 
Church has the right and duty to teach all nations the evangeli- 
eal doctrine, and all are bound by the divine law to acquire a 
proper knowledge of this doctrine and to embrace the true 
Chureh of God (Canon 1322). 

It is a well-known fact attested by history that the Catholic 
Church has always claimed to have been appointed by Christ 
as the sole guardian and authorized teacher and interpreter 
of the religious truths taught by Christ. Dissenting sects arose 
soon after the departure of Christ from this world; the Church 
examined the teaching of the dissenters, decided whether or 
not their doctrine agreed with the teaching of Christ, and, if 
she had to condemn the teaching, she did so regardless of con- 
sequences, trusting that God will uphold the truth and give 
strength to those who with their whole heart embrace it despite 
the opposition of all the powers of the world. 

1344. By the divine and Catholic faith must be believed all 
those truths which are contained in the Word of God as written 
or handed down to us, and which are, either by solemn pro- 
nouncement or by the ordinary and universal teaching of the 
Church, proposed for belief as divinely revealed truths. The 
solemn judgment in this matter is reserved to an Cicumenical 
Council and the Roman Pontiff speaking ex cathedra (that is to 
say, in his capacity of the supreme teaching authority). No 
religious teaching is to be understood as dogmatically declared 
and defined, unless such declaration or definition has clearly been 
made (Canon 1323). 


96 





CANONS 1322-1325 97 


The human mind must be disposed and willing to believe 
whatever God has taught mankind. To ascertain what God has 
taught would be a practical impossibility, if God Himself had 
not appointed a teacher and interpreter of His revealed truths, 
and had not furthermore assisted that teacher with His divine 
power so as to ward off all error. This is called the Infallibility 
of the Church, which is exercised when, either in an @cumeni- 
eal Council or through the Supreme Pontiff, she speaks on mat- 
ters of faith and morality in the name of Christ and as the 
God-appointed teacher of mankind. 

1345. It is not sufficient to avoid heretical error, but one 
must also diligently shun any errors which more or less approach 
heresy. Wherefore, all constitutions and decrees by which the 
Holy See has condemned and prohibited such opinions must be 
observed (Canon 13824). 

Heresy consists in a stubborn denial of truths which have 
been defined and proposed by the Church as divinely revealed 
doctrines. Obedience to the teaching authority of the Church 
obliges her subjects to accept, not only the truths defined as 
revealed, but also whatever the Church ordains in virtue of 
her right and duty to safeguard the divinely revealed truths. 
If one admits that the Church has been appointed by God as 
the teacher of faith and morality, one must also admit that the 
Church has the right to forbid opinions which are dangerous 
to the principles of faith and morality. 

1346. The faithful are bound to profess their faith publicly, 
whenever silence, subterfuge, or their manner of acting would 
otherwise entail an implicit denial of their faith, a contempt of 
religion, an insult to God, or scandal to their neighbor. Any 
baptized person who, while retaining the name of Christian, 
obstinately denies or doubts any of the truths proposed for 
belief by the divine and Catholic faith, is a heretic; if he aban- 
dons the Christian faith entirely, he is called an apostate; if, 
finally, he refuses to be subject to the Supreme Pontiff, or to 
have communication with the members of the Church subject 
to the Pope, he is a schismatic. 

Catholics shall not enter into any disputes or conferences 
with non-Catholics—especially public ones—without the permis- 
sion of the Holy See or, in urgent cases, of the local Ordinary 
(Canon 1325). 


98 A PRACTICAL COMMENTARY 


This official explanation of the terms heretic, apostate and 
schismatie is of importance for the correct understanding of 
the Canons in which these terms are employed. The question 
when the profession of one’s faith is required in order to avoid 
what appears an implicit denial of one’s faith, contempt of 
religion, an insult to God, or a scandal to the neighbor, depends 
largely on prudent judgment in the various circumstances. Gen- 
erally speaking, there are few cases in which one has to make 
known his religious profession, for in the civil intercourse of 
people in these days it is understood that one’s religion is not 
to be considered, though certain people try to make things 
unpleasant for Catholics even in the common affairs of life. 
Yet, it is impossible to maintain peace and charity unless re- 
ligious tolerance is practised, for with the facilities of modern 
travel and world-wide activity Catholics intermingle with the 
adherents of the various Christian denominations in all the 
countries of the world, and must find a way of living in peace. 

1347. Although they do not possess, either individually or 
when assembled in particular councils, infallibility in their teach- 
ing, the bishops also are truly doctors and teachers of the faith- 
ful committed to their care under the authority of the Roman 
Pontiff (Canon 1326). 


TITLE xx 


OF THE PREACHING OF THE DIVINE WORD 


1348. The office of preaching the Catholic faith is committed 
especially to the Roman Pontiff for the Universal Church, and 
to the bishops for their dioceses. In virtue of their office, the 
bishops are bound to preach the Gospel in person, unless they 
have a legitimate excuse; in addition, they must employ, besides 
the pastors, the help of other qualified persons for the salutary 
fulfillment of their office of preaching (Canon 1327). 

1349. Nobody is allowed to exercise the ministry of preach- 
ing, unless he has received a commission from the legitimate 
superior, either by special faculty or by appointment to an 
office to which the duty of preaching is attached by the Sacred 
Canons (Canon 1328). 





CANONS 1326-1331 99 


It was always understood in the Catholic Church that the 
bishop has a personal obligation to teach the people of his dio- 
cese. As successors of the Holy Apostles, Christ’s command 
to the Apostles to teach all nations extends also to the bishops. 
In a Decree passed in the Fourth Lateran Council (1215), Pope 
Innocent III enumerates the cases in which it becomes physi- 
cally or morally impossible for the bishop to comply personally 
with the duty of preaching: in these cases the bishops are ex- 
cused, but the Pope insists that they must at all times employ 
a sufficient number of capable preachers throughout the diocese. 


CHAPTER I 


OF CATECHETICAL INSTRUCTION 


1350. It is a proper and most serious office, especially of the 
pastors of souls, to provide for the catechetical instruction of the 
Christian people (Canon 1329). The pastor must: (1) .at stated 
times each year prepare the children for the reception of the 
Sacraments of Penance and Confirmation by instructions over 
a number of days; (2) prepare the children with a truly excep- 
tional care—preferably during Lent, if nothing stands in the 
way—to receive their First Holy Communion worthily (Canon 
1330). Besides the instructions, spoken of in Canon 1330, the 
pastor shall not neglect to instruct more fully in Christian doce- 
trine the children who have recently made their First Communion 
(Canon 1331). 

The Code does not say that it is the personal duty of pastors, 
although it calls the duty of bishops to preach a personal one. 
The pastor may, therefore, employ others for the teaching of 
religion, but he must appoint persons who are qualified to teach 
religion properly. It is wrong to leave the religious instruction 
of the children exclusively to nuns, unless they have been spe- 
cially prepared by a higher course in religion. One cannot 
reasonably expect the Sisters in general to be prepared for that 
work; only a person who specializes in the study of religion 
can have the necessary knowledge to teach religion. A few days 
of special instruction before First Holy Communion are not 


1 Decretales Greg. IX, ce. 15, De off. Jud. Ordieiipe tet tite Sl 


100 A PRACTICAL COMMENTARY 


enough to train children properly in religion. As to the prepa- 
ration for Confirmation, the bishops in the United States have 
in many instances an immense territory to cover, so that they 
cannot give Confirmation annually in every parish ; but, when- 
ever Confirmation is arranged for, special preparation of the 
children must be likewise provided. The pastors of parishes 
which have no parochial school are confronted with a grave 
difficulty in their efforts to impart adequate religious training 
to the children. The Sunday-school catechism hour is certainly 
insufficient. The problem can be solved only by much exertion 
and sacrifice on the part of the pastors of such parishes. 

1351. On Sundays and other feasts of obligation the pastor 
must, at an hour which he judges most convenient for the at- 
tendance of the people, give catechetical instruction to the adults 
in discourses suited to their capacity (Canon 1332). 

The Code is largely based on the European system of Sunday 
services. In the United States it is not the custom to have the 
sermon separated from the Mass except on some extraordinary 
occasion—e.g., Novenas, retreats, missions, Forty Hours’ Devo- 
tion. Since the people get no regular instruction except at Holy 
Mass, it is important that the ten or fifteen minutes available 
for instruction be not consumed with all kinds of announce- 
ments. In some of the large parishes in which Masses follow 
one another closely, there is no instruction at all given at some 
Masses. If the number of parishioners is so large that the 
number of Masses required does not give sufficient time for 
instructions, such parishes should be divided, for the people 
must be taught their religion, and indeed cannot be expected 
to take an intelligent interest unless they know it. It is well 
known that our Catholic people read very few, if any, Catholic 
books on doctrinal or purely religious subjects. Where are they 
to get their knowledge of religion? It is remarkable under the 
circumstances that there is still so much interest in religion as 
is manifested in the material prosperity of parishes and insti- 
tutions. 

1352. The pastor must, if he is legitimately impeded from 
giving religious training to the children, employ the help of 
other clerics living in the parish, and also, if necessary, of 
devout lay persons, especially those who belong to the Sodality 
of Christian Doctrine or some similar society established in the 





CANONS 1332-1336 101 


parish.” Unless excused by legitimate impediment, priests and 
other clerics must assist their own pastor in this most holy work, 
and they may be ordered to do so by the Ordinary, even under 
ecclesiastical penalties (Canon 1333). 

If, in the judgment of the local Ordinary, the help of re- 
ligious is deemed necessary for the ecatechetical instruction of 
the people, religious superiors, even though exempt, are obliged 
upon request of the same Ordinary to give eatechetical instruc- 
tion, either in person or through their subjects, especially in 
their own churches; such instruction, however, need not be given 
to the detriment of religious discipline (Canon 1334). 

1353. Not only parents and others who hold the place of 
parents, but also the heads of a household and godparents, are 
bound by obligation to see that those subject to them or entrusted 
to their care receive catechetical instruction (Canon 1335). 
Local Ordinaries have the right to regulate everything pertain- 
ing to the teaching of Christian doctrine to the people in their 
diocese, and all must obey his orders—even exempt religious, 
when there is question of teaching non-exempt persons (Canon 
1336) .3 

1354. By Motu Proprio of Pope Pius XI, June 29, 1923, a 
special Department of Christian Doctrine was established at the 
Sacred Congregation of the Council, with power to direct and 
promote catechetical instruction and all affairs pertaining to that 
subject.* By Letters addressed to all bishops, June 24, 1924, this 
Sacred Congregation requested information from the various 
dioceses on the manner in which the eatechetical instruction of 
children and young people is conducted. To secure this informa- 
tion, it sent out a questionnaire, inquiring: (1) about parochial 
schools; (2) about higher Catholic schools; (3) about the re- 
ligious instruction of children who attend public schools.> In the 
Apostolic Letters of Pope Pius XI to all religious organizations 
of men, March 19, 1924, the Supreme Pontiff deals with the 
studies of religious, urges that special attention be paid in the 
lower studies of young religious to the teaching of Christian doe- 


2 Canon 711 desires the bishop to establish the Confraternity of Christian 
Doctrine in every parish. 

8 Littere Iineyclice Pii X, April 15, 1905, De Doctrina Christiana (Acta 
S. Sedis,, XXXVII, 613). 

4 Acta Ap. Sedis, XV, 327. 

5 Acta Ap. Sedis, XVI, 332. 


102 A PRACTICAL COMMENTARY 


trine, and strongly recommends the Roman Catechism as a text- 
book.°® 


CHAPTER II 


OF SACRED PREACHING 


1355. Only the local Ordinary can within his territory grant 
the faculty of preaching to the secular clergy and to non-exempt 
religious (Canon 1337). If a sermon is to be preached exclu- 
sively for exempt religious and their household as specified in 
Canon 514, the religious superior of the exempt clerical organiza- 
tion, who has this right according to the constitutions of his com- 
munity, grants the faculty of preaching; he may give this faculty 
even to secular priests, and to those of another religious com- 
munity, provided they have been declared qualified by their own 
Ordinary or religious superior. If a sermon is to be preached 
to others, even to nuns subject to regulars, the faculty of preach- 
ing is given even to exempt clergy by the Ordinary of the place 
where the sermon is to be given, but the preacher who is to 
address exempt nuns needs in addition the permission of the 
regular superior. The faculty of preaching to members of an 
exempt laical organization of religious is given by the local Ordi- 
nary, but the preacher cannot make use of the faculty without the 
consent of the religious superior (Canon 1338). 

The various laws issued in recent times,’ and especially the 
Normae (or Regulations)® on sacred preaching, are contained in 
the Code in condensed form. Canon 1338 modifies the former 
privilege of exempt religious, who, before the promulgation of 
the Code, could preach to the people in their own churches with- 
out the approval of the bishop, having only to ask his blessing. 
The Code rules that, whenever they preach to the people any- 
where in the diocese, the approval of the bishop is required. 

1356. Local Ordinaries shall not without a grave reason 
refuse the faculty of preaching to those religious who are pre- 
sented by their proper superior, nor shall they without a grave 
reason recall the faculty once granted—especially not from all 

6 Acta Ap. Sedis, XVI, 133. 

7 Sacred Cong. Episcopr. et Regular., July 31. 1894 (Acta S. Sedts, 
XXVII, 162); Motu Proprio, Pius X, Sept. 1, 1910 (Acta Ap. Sedis, UI, 


655); Benedict XV, June 15, 1917 (Acta Ap. Sedis, IX, 305). 
8 Sacred Consistorial Cong., June 28, 1917 (Acta Ap. Sedis, IX, 328). 





CANONS 1337-1341 103 


the priests of a community at one and the same time. The law 
of Canon 1340, however, stands. Religious priests are not 
allowed to make use of the faculty of preaching granted to them 
by the local Ordinary without the additional permission of their 
superior (Canon 1339). 

The local Ordinary and the religious superior are under grave 
obligation of conscience forbidden to give the faculty or permis- 
sion to preach to any priest until his good moral standing and 
sufficiency of knowledge have been first ascertained by examina- 
tion, as demanded by Canon 877. If, after granting the faculty 
or permission, they find that the preacher lacks the necessary 
qualifications, they must recall*the faculty; when doubt arises as 
to the necessary knowledge, they must dispel this doubt by cer- 
tain proofs, and even by a new examination, if necessary. Ifa 
man is deprived of the faculty or permission to preach, recourse 
to the higher superiors is permitted in devolutivo—that is to say, 
the order of the bishop or superior is not suspended by the 
appeal, and must be obeyed in the meantime (Canon 1340). 


PREACHERS FROM OTHER DIOCESES 


1357. Priests of another diocese, whether secular or religious, 
shall not be invited to preach until permission has been obtained 
from the bishop of the place where the sermon is to be given. 
Unless the preacher is otherwise known to him, the bishop shall 
not give him the faculty to preach until he has received from his 
proper Ordinary a good testimonial concerning his knowledge, 
piety, and good character. The Ordinary giving the testimonial 
is bound by a grave obligation of conscience to send a truthful 
statement. 

A timely request for the above-mentioned permission must be 
made by the pastor in the case of a parochial or other church 
subject to the pastor; by the rector, if the church is exempt from 
the pastor’s jurisdiction; by the first dignitary of the chapter 
with the consent of the chapter in the case of a eapitular church ; 
by the director or chaplain in the case of a church or chapel of 
a confraternity. If a parochial church is simultaneously a 
capitular or confraternity church, the priest who by law per- 
forms the sacred functions shall apply for the permission 
(Canon 1341). 


104 A PRACTICAL COMMENTARY 


PRIESTS AND DEACONS ONLY May Br GRANTED LEAVE TO PREACH 


1358. The faculty or license to preach should be given only 
to priests or deacons, but not to other clerics, unless for a reason- 
able cause the bishop sees fit to grant it in individual cases. All 
laymen, even religious, are forbidden to preach in church 
(Canon 1542). 

That women may not preach in church, we learn by ordinance 
of St. Paul (I Cor., xiv. 34-85; I Tim. ii. 11-12). Pope St. 
Leo I ruled that nobody except the priest of the Lord, whether 
he be monk or layman, be allowed to preach.® The same prohibi- 
tion is repeated in the Decretals.° That deacons may preach 1s 
clearly declared in the ordination rite of the deacons, as pre- 
scribed by the Pontificale Romanum. The Decretum Gratians 
speaks of the right of the deacon to preach,** and it seems that, 
ever since the first appointment of deacons, they exercised the 
ministry of the Divine Word, as we read of the deacons, Sts. 
Stephen and Philip. 

1359. Local Ordinaries have the right to preach in any church 
within their own territory, not excluding exempt churches. Un- 
less the city is very large, the bishop may forbid sermons to the 
people in other churches of the city at the time when either he 
himself preaches, or has a sermon preached in his presence on 
some public and extraordinary occasion (Canon 1343). 


PREACHING ON SUNDAYS AND HOLYDAYS OF OBLIGATION 


1360. On Sundays and other holydays of obligation through- 
out the year it is the duty of the pastor to preach the Word of 
God to the people in the customary homily, especially during 
that Holy Mass at which the attendance of the people is usually 
more numerous. The pastor cannot satisfy this obligation 
habitually through another priest, unless he has a just excuse 
approved by the Ordinary. The Ordinary may allow the omis- 
sion of the sermon on certain of the more solemn feasts, and for 
a good reason also on some Sundays (Canon 1344). 

The Code insists that on Sundays and holydays of obligation 
a sermon be preached to the people. The custom in many 

9 Decretum Gratiani, e. 19, C. XVI, qu. 1. 


10 Decretal. Greg. IX, ec. 12 and 14, De heretics, lib, V, tit. 7. 
24:6: 714D425," and ia, Ds 92: 





CANONS 13842-1346 105 


parishes of having no preaching at all during the summer months 
violates the positive law of the Church, and is a breach of the 
natural obligation which binds priests, charged with the care of 
souls, to instruct the people in the faith and Christian life. 
Though the Code speaks of one sermon only, it is evident that 
this is insufficient in parishes where no regular instruction in 
religion is given except at the Mass on Sundays and holydays, as 
we remarked in commenting on Canon 1332. 

1361. It is to be desired that in all churches and public ora- 
tories, where people assist at Holy Mass on Sundays and holydays 
of obligation, a short explanation of the holy Gospel or of some 
point of Christian doctrine be given to the people. If the local 
Ordinary has given orders concerning this matter, they must be 
obeyed, not only by the secular clergy but also by non-exempt 
and exempt religious, even in their own churches (Canon 1345). 


PREACHING IN LENT AND ADVENT 


1362. Local Ordinaries shall take care that during the Lenten 
season—and also during Advent, if they judge it useful—more 
frequent. sermons are given in the cathedral and parochial 
churches. Unless they are detained elsewhere for a legitimate 
reason, the canons and others belonging to the Cathedral Chap- 
ter are bound to be present at these sermons, if they are held 
immediately after the choir services, and the Ordinary can oblige 
them to be present, even by imposing penalties (Canon 1346). 

It is the custom in many parishes in the United States to 
have Lenten services on two evenings every week in Lent: on 
one evening a sermon is preached, and on the other the Way of 
the Cross is usually made by priest and people. The Code 
apparently alludes to the daily Lenten sermon customary in the 
churches of Rome, but does not prescribe anything definite in 
the matter, leaving it to the bishop of the diocese to ordain what 
he judges appropriate. 


MANNER OF PREACHING 


1363. In the sacred sermons should be explained above all the 
things which the faithful must believe and do to save their souls. 
The preachers of the Word of God must abstain from profane 
arguments and arguments too deep for the average understand- 


106 A PRACTICAL COMMENTARY 


ing of their hearers, and shall execute the evangelical ministry, 
not with the persuasive words of human wisdom, nor with the 
profane display of a vain and ambitious eloquence, but in ‘‘the 
shewing of the spirit and the power’’ of God, preaching not 
themselves but Christ crucified. If it should unfortunately hap- 
pen that a preacher disseminates errors and scandals, he shall be 
forbidden to preach, to hear confessions, or to exercise any office 
of teaching (as Canon 2317 provides); if his preaching is 
heretical, proceedings shall be instituted against him according 
to the rules of law (Canon 1347). The faithful are to be zeal- 
ously exhorted and admonished to attend the sermons frequently 
(Canon 1348). 


CHAPTER III 


OF SACRED MISSIONS 


1364. Ordinaries shall see that the pastors arrange a mission 
for their parishioners at least once in ten years. The pastors, 
not excluding those of religious organizations, are bound to obey 
the local Ordinary’s regulations concerning these missions 
(Canon 1349). 

The mission with its systematic plan of sermons, instructions, 
plous exercises and prayers is a fairly recent development of 
religious activity in the Church. It lasts regularly for one week ; 
although missions lasting two weeks—one week for men and one 
for women—or even a longer time in very large parishes, are also 
common. St. Vincent Ferrer and St. Bernardine of Siena are 
generally considered the pioneers in this work. The fact is that, 
ever since the time of St. Dominic and St. Francis of Assisi, 
many Dominican and Franciscan Friars went as itinerary 
preachers throughout the countries of Europe, stirring up the 
faith and devotion of the Christian people. In the first half of 
the eighteenth century, St. Leonard of Port Maurice (died 1751) 
was one of the most forceful missionaries that the world has ever 
seen, and, by Apostolic Letter of March 17, 1923, Pope Pius XI 
declared him patron of the missions among Catholics.” 

1365. Ordinaries and pastors should regard the non-Catholies 
living in their dioceses and parishes as their wards in Jesus 


12 Acta Ap. Sedis, XV, 196. 





CANONS: 1347-1354 107 


Christ. In other territories the entire eare for the missions 
among non-Catholics is reserved exclusively to the Holy See 
(Canon 1350). Nobody may be forced to embrace the Catholic 
faith against his will (Canon 1351). 


TITLE XXI 


OF SEMINARIES 


1366. It is the proper and exclusive right of the Church to 
educate the men who desire to devote their lives to the ecclesias- 
tical ministry (Canon 1852). All priests, especially pastors, 
shall see that boys who show signs of ecclesiastical vocation, are 
carefully preserved from the contamination of the world. They 
shall train such youths in piety, give them elementary instruc- 
tions in the study of letters, and foster in them the seed of the 
divine vocation (Canon 1353). 

1367. In every diocese the bishop shall erect in a suitable 
place a seminary in which, according to the resources and the 
requirements of the diocese, a certain number of young men may 
be educated for the clerical state. Every effort should be made, 
especially in large dioceses, to establish two seminaries—a minor 
seminary in which boys may study a literary course, and a major 
seminary for the study of philosophy and theology. If a diocesan 
seminary cannot be erected, or if in such a seminary a proper 
course in philosophy and theology cannot be given, the bishop 
should send the students to an outside seminary, unless an inter- 
diocesan or provincial seminary has been established with the 
authority of the Holy See (Canon 1354). 

1368. In the United States the right of the Church to erect 
seminaries and educate seminarians has never been questioned. 
Full freedom is given to all religious denominations to manage 
their own affairs of religion, and, though the government cannot 
under its Constitution favor or aid any one religion in particular 
the value of religious training for the promotion of the general 
welfare of the country has been recognized. Therefore, the vari- 
ous states have exempted from taxation the buildings and prop- 
erty devoted to education, both secular and religious. On the 
other hand, the entire burden of financing private educational 


108 A PRACTICAL COMMENTARY 


institutions (among which are reckoned all religious schools) is 
thrown on the respective Churches. In the United States the 
Catholics have more private schools than any other religious 
denomination, and it is estimated that about two million children 
receive their education in parochial schools, saving the country 
annually an expenditure of approximately one hundred and 
ninety million dollars. In some of the states where the Catholics 
are not very numerous, antagonists of religious education are try- 
ing hard to take away the right of Catholics and others to educate 
their children according to their faith, and are urging the passing 
of laws that would prohibit all private schools. Fortunately, the 
Supreme Court of the United States has unanimously decided 
that the prohibition of private schools would be an infringement 
on the liberty of our citizens. 

1369. The Code admonishes pastors and all other priests to 
foster vocations for the priesthood in boys who show signs of the 
divine call. However, no undue influence should be used to 
impel a boy to study for the priesthood, for it must be his own 
free choice. On the other hand, parents and priests may not be 
indifferent to the signs of vocation by leaving such a boy unaided 
and without encouragement. 


SEMINARY TAX 


1370. If there are no special funds for the building and main- 
tenance of the seminary, and the support of students, the bishop 
may: 

(1) order the pastors and rectors of churches (even the 
exempt ones) to take up at stated times a collection in their 
churches for that purpose ; 

(2) impose a seminary tax in his diocese; 

(3) if these means are not sufficient, he may annex some 
simple benefices to the seminary (Canon 1355). 

1371. Liable for the seminary tax or assessment are the mensa 
episcopalis, all benefices (including those of regulars and those 
over which some one has the right of patronage), all parishes and 
quasi-parishes (though they have no other revenue than the 
offerings of the faithful), hospitals erected by ecclesiastical 
authority, sodalities canonically erected, church buildings that 
have their own revenue, and every religious house (though 





CANONS 13855-1356 109 


exempt), unless the religious live solely on alms or have actually 
in their house a college for pupils or teachers for promoting the 
common welfare of the Church. All custom exempting from the 
payment of the seminary tax is disapproved, every contrary privi- 
lege whatsoever is abrogated, and no appeal will be entertained 
(Canon 1356, § 1). This assessment must be general, and the 
same rate must be levied on all churches and institutes subject to 
the tax: while it may be increased or diminished according to the 
needs of the seminary, the annual tax must not exceed 5 per cent 
of the income, and is to be lowered as the revenue of the seminary 
increases (Canon 1356, § 2). 

The taxable income is that which remains at the end of the 
year, after all obligations and necessary expenditures have been 
paid. In benefices in which the holders of the benefice receive 
daily distributions besides the regular revenue of their benefice, 
the daily distributions are not taxable; if the benefice consists 
only of daily distributions, one-third of the amount is exempt, 
from the tax. In parishes the offerings of the faithful are not 
taxable revenue of the parish, unless the parish has no other 
revenue than the offerings of the faithful, in which case one-third 
of the offerings is exempt (Canon 1356, § 3). 

1872. In the United States the parishes have no income other 
than the offerings of the faithful, and in most parishes there is 
practically no surplus at the end of the year: whatever remains 
over and above the current expenditures, is usually needed to 
reduce the debt of the parish, or is put into a fund for the con- 
struction of some needed building. The cost of building material 
and construction work is so high that many thousands of dollars 
are needed nowadays to erect a complete parish plant of average 
size and in the plainest style. There is, therefore, in many 
parishes no taxable income in the sense of Canon 1356, § 3, for 
the reason that there is no real surplus. Nevertheless, the semi- 
nary must be taken care of, because it is essential to a diocese. 
Even in dioceses that have no seminary of their own but send 
their seminarians to other seminaries, funds are needed for the 
maintenance of these seminarians. Unfortunately, the parishes 
are in many instances taxed so severely that their own develop- 
ment is hindered, and a distressing burden is put on the pastor 
who is forced to make everlasting appeals for money. It is not 
unusual to find:that the tax imposed on the parishes for various 


110 A PRACTICAL COMMENTARY 


diocesan needs amounts to fifteen per cent of the gross income of 
the parishes. As most of the parishes have debts to pay in addi- 
tion to current expenditures, a diocesan assessment of fifteen per 
cent of the gross receipts seems oppressive. 


ADMINISTRATION OF THE SEMINARY 


1373. The bishop has the right to pass whatever regulations 
seem necessary or opportune for the proper administration, gov- 
ernment and progress of the diocesan seminary and to enforce 
the faithful observance of these regulations, subject to the pre- 
cepts which the Holy See may have laid down in special cases. 
The bishop shall frequently visit the seminary in person, shall 
supervise carefully the manner in which the secular and ecclesias- 
tical sciences are taught, and shall obtain full reports regarding 
the dispositions, vocation, character and educational progress of 
the students, especially at the time of sacred crdinations (Canon 
1357, §§ 1-2). 

1374. Every seminary shall have its own statutes, approved 
by the bishop. These regulations shall state what things are to 
be done and observed both by the students and by the professors. 
The entire government and administration of interdiocesan or 
provincial seminaries shall be based on the regulations passed by 
the Holy See for these seminaries (Canon 1357, §§ 3-4). 

1375. In every seminary there must be a rector to maintain 
discipline, professors to conduct the classes, a bursar (@conomus) 
distinct from the rector, to take charge of the household adminis- 
tration, at least two ordinary confessors, and a spiritual director 
(Canon 1358). 

1376. Two boards of deputies shall be appointed for each 
diocesan seminary—one for discipline and the other for the ad- 
ministration of the temporal goods. Each board is to consist of 
two priests chosen by the bishop, with the advice of the Chapter 
(or the diocesan consultors). The vicar-general, priests belong- 
ing to the bishop’s household, the rector of the seminary, the 
bursar, and the ordinary confessors, are excluded from both 
boards. The term of office of the members lasts for six years, and 
the men appointed shall not be removed without a serious cause; 
they may be re-appointed. The bishop is bound to consult the 
boards in affairs of importance (Canon 1359). To the offices of 


CANONS 1357-1362 111 


rector, spiritual director, confessors, and professors of the 
seminary, shall be appointed men qualified for these offices, not 
only by their learning, but also by their virtue and discretion, so 
that in word and deed they may be an example for the students. 
As declared by Canon 891, the rector may not be confessor for 
the seminarians. In the execution of their offices, all must obey 
the rector of the seminary (Canon 1360). 


CONFESSORS OF THE SEMINARY 


1877. Besides the ordinary confessors, other confessors should 
be appointed to whom the seminarians may freely go to confes- 
sion. If these confessors live outside the seminary, and a student 
requests the rector to call one of them to hear his confession, the 
rector is forbidden in any way to inquire into the reason, or to 
show displeasure. If the confessors live in the seminary, the 
seminarians may freely approach them, without prejudice to the 
discipline of the seminary. When the question of admitting a 
seminarian to orders or of dismissing him from the seminary is 
being considered, the vote of the confessor shall never be asked 
(Canon 1361). 


UsE oF LEGACIES FOR THE EDUCATION OF CLERICS 


1378. The income derived from legacies left for the education 
of clerics may be used in favor of the students in the minor as 
well as in the major seminary, even though they are not as yet 
made clerics by reception of the tonsure, unless the terms under 
which the legacy was left to the seminary explicitly restricts the 
use of the money to clerics proper (Canon 1362). 

The Council of Trent desired that the bishop should receive 
boys into the minor seminary at an early age (the minimum being 
twelve years), if they showed signs of vocation to the priesthood. 
Poor boys were to be educated free of charge, while boys of 
wealthy parents were to pay for their board and tuition.’? The 
Code does not state anything explicitly about board and tuition, 
but from its general provisions regarding the defraying of the 
expenditures of the seminary it seems to imply that the students 
do not pay for board and tuition. In Canon 1362 the Supreme 


13 Sessio XXIII, cap. 18, De Reform. 


112 A PRACTICAL COMMENTARY 


Authority of the Church orders that last wills and bequests of 
any kind, made under the general form “‘for the education of 
cleries,’’ are to include ecclesiastical students who have not yet 
received the first tonsure. 


QUALIFICATIONS FOR ADMISSION TO A SEMINARY 


1379. The Ordinary should receive into the seminary only 
boys who were born of legitimate wedlock, and whose character 
and good-will justify the hope that they will persevere and work 
with success in the ecclesiastical ministry. Before they are re- 
ceived, they must present testimonials of legitimate birth, of Bap- 
tism and Confirmation, and of good conduct and morals. Students 
who have been discharged from another seminary, or from some 
religious organization, shall not be admitted unless the bishop has 
first obtained information (in secret, if necessary) from the 
superiors and others about the reason for’their dismissal and 
testimonials as to their morals, dispositions, and talents, and has 
convinced himself that there is nothing in their character which 
-would be unbecoming to the sacerdotal state. Superiors, and 
others who are asked for information, are bound by a grave obli- 
gation of conscience to answer truthfully (Canon 1363) .** 


STUDIES IN SEMINARIES 


1380. In the lower grades of the seminary : 

(1) religious instruction shall occupy the first place, and is 
to be most diligently given in a manner adapted to the age and 
intelligence of the students; 

(2) the students shall acquire an accurate knowledge-espe- 
cially of the Latin and vernacular languages; 

(3) in other branches of study such training shall be given 
as befits the general culture of the people and the status of the 
clergy in the place where they are to exercise the ministry 
(Canon 1364). 

1381. The course of philosophy, together with other allied 


14 A Decree of the Sacred Consistorial Cong., Dec. 22, 1905, absolutely 
forbade the bishops to receive a student dismissed from another seminary. 
The Code now allows the bishop to use his own judgment (cfr. Acta Ap. 
Sed., II, 106). 





CANONS 13863-1366 113 


subjects, is to last at least two full years. The theological course 
must last at least four full years: besides dogmatic and moral 
theology, this course must embrace especially the study of Sacred 
Seripture, church history, canon law, the liturgy, sacred elo- 
quence, and ecclesiastical chant. Lectures shall be also given on 
pastoral theology, with practical exercises on the method of 
teaching catechism to children and others, hearing confessions, 
visiting the sick, and assisting the dying (Canon 1365). 

1382. In the appointment of professors of philosophy, theol- 
ogy, and canon law, the bishop and seminary boards shall give 
preference, all other things being equal, to those who have re- 
ceived the degree of doctor from a university or a faculty recog- 
nized by the Holy See; or, in the ease of religious, to those who 
have a similar degree from their major superiors. Philosophy and 
theology shall be taught by the professors absolutely according 
to the method, doctrine and principles of the Angelic Doctor, 
which must be faithfully preserved. Care should be taken to 
have special professors at least for Sacred Scripture, dogmatic 
theology, moral theology, and church history (Canon 1366). 

1883. The Church has not fixed a plan of studies for all the 
seminaries of the Christian world, because it is not possible to 
have one universally satisfactory schedule. The Church wisely 
leaves it to the bishop to arrange, with the advice of the seminary 
boards, the plan of studies for his own diocese: they know best 
what is necessary or useful. However, the Code does fix certain 
points regarding the studies in seminaries, and these must be 
complied with everywhere, in so far as circumstances make it 
possible. The documents of the Holy See regarding seminary 
studies include an urgent exhortation of Pope Benedict XV to 
study the Sacred Scriptures, saying that it must be the foremost 
study of priests and candidates for the priesthood.*® General 
directions concerning seminary studies are given in a letter of 
Pope Pius XI to the Cardinal Prefect of the Sacred Congregation 
of Seminaries and Universities: these are in the nature of a 
detailed explanation of the few fundamental points of the Code 
on these studies.7° As to church music, Pope Pius XI, by Motu 
Proprio of November 22, 1922, established a higher school of 
church musie at Rome for the purpose of training clerics and 


15 September 15, 1920 (Acta Ap. Sedis, XII, 385). 
16 August 1, 1922 (Acta Ap. Sedis, XIV, 449-458). 


114 A PRACTICAL COMMENTARY 


laymen in correct church music, composition, and organ-play- 
bag! 

1384. The Code demands at least four years of theological 
studies. If a dispensation is granted to ordain men before the 
time specified by the Code (viz., after the first semester of the 
fourth year), the condition attached to all such dispensations, 
past as well as future, is that the candidate must continue his 
studies after ordination until the end of the fourth year, and that 
he cannot before that time be employed to preach or hear confes- 
sions. The Deeree is given by the Sacred Congregation of Reli- 
gious and applies only to religious organizations.** Here may 
be mentioned the Letter of His Holiness, Pope Pius XI, to all 
religious organizations of men on the education of their students. 
It is not a document which ordains points of law but rather a 
paternal instruction of the Father of Christianity, and contains 
many useful and timely hints.*® 

One of the most far-reaching recent regulations affecting 
seminaries is the Motu Proprio of Pope Pius XI, which ordains 
that nobody shall be a professor of Sacred Scripture in semi- 
naries unless he has taken a special course in Sacred Scripture, 
and has legitimately obtained the academic degrees (or at least 
the baccalaureate) from the Biblical Commission or the Biblical 
Institute at Rome.”° 


RELIGIOUS EXERCISES OF SEMINARIANS 


1385. The bishop shall see that the seminarians: 

(1) say daily their morning and night prayers in common, 
spend some time in meditation, and assist at Holy Mass; 

(2) go to confession at least once a week, and frequently 
receive Holy Communion with proper devotion ; 

(3) assist on Sundays and holydays of obligation at Solemn 
Mass and Vespers, serve at the altar and practise the sacred cere- 
monies, especially at the cathedral, if this, in the bishop’s judg- 
ment, can be done without detriment to discipline and studies; 

(4) make a retreat annually for several continuous days; 

(5) attend at least once a week an instruction on the spiritual 


17 Acta Ap. Sedis, XIV, 623. 

18 October 27, 1923 (Acta Ap. Sedis, XV, 549). 
19 March 19, 1924 (Acta Ap. Sedis, XVI, 133-148). 
20 April 27, 1924 (Acta Ap. Sedis, XVI, 180). 





CANONS 1367-1370 115 


life, which should be closed with a pious exhortation (Canon 
1367). 


EXEMPTION OF THE SEMINARY 


1386. The seminary shall be exempt from parochial jurisdic- 
tion. The rector of the seminary or his delegate shall discharge 
the office of pastor for all persons in the seminary, except in con- 
nexion with marriage and subject to the precept of Canon 891. 
These rules concerning the exemption obtain in all seminaries, 
unless the Holy See has ruled otherwise for particular seminaries 
(Canon 1368). 

Canon 891 forbids the rector to hear the confessions of stu- 
dents living in the seminary, unless a student voluntarily asks 
him in some individual ease. 


DUTIES OF THE RECTOR OF THE SEMINARY 


1387. The rector of the seminary and other officials under 
his authority shall see that the seminarians faithfully observe 
the statutes approved by the bishop and the plan of studies, and 
that they become imbued with a truly ecclesiastical spirit. The 
principles of true Christian politeness shall be frequently incul- 
cated, and the officials shall by their own example prompt the 
seminarians to cultivate these principles. The students shall be 
also urged to observe the laws of hygiene, and to cultivate cleanli- 
ness of dress and person, courtesy, moderation and gravity. The 
rector shall guard vigilantly that the professors attend properly 
to the duties of their office (Canon 1369). 

Whenever seminarians live outside the seminary for any rea- 
son, the precept of Canon 972 shall be observed (Canon 1370). 
Canon 972 demands that students, who for a legitimate reason 
live outside the seminary, shall be entrusted to the care and sur- 
veillance of a pious and capable priest. 

1388. Disorderly, incorrigible, or seditious students, and those 
who because of their character or temperament do not seem suit- 
able candidates for the clerical state, shall be dismissed from the 
Seminary. Students who progress so slowly in their studies that 
there is not much hope that they will acquire sufficient learning, 
shall also be dismissed. If a seminarian should be guilty of an 


116 A PRACTICAL COMMENTARY 


offense against good morals or the faith, he shall be summarily 
discharged (Canon 1371) .?* 


SEMINARIES IN CHARGE OF RELIGIOUS ORGANIZATIONS 


1389. The bishop may entrust his diocesan sernmary to the 
care of some religious organization. As the common law does not 
contain any regulation regarding the agreement between the 
bishop and the religious organization, the respective rights of the 
bishop and the religious must be fixed by mutual agreement. If 
the contract drawn up between the two parties contravenes the 
laws of the Code on seminaries (if, for instance, the two diocesan 
boards presiding over discipline and finances are dispensed with), 
the permission of the Holy See is required for the agreement. 
By Brief of December 23, 1921, Pope Benedict XV granted to 
the Sulpician Fathers the privilege of accepting the charge of 
seminaries and exercising the independent administration of 
these institutions in temporal as well as in spiritual affairs, with- 
out the intervention of the diocesan boards. They shall, however, 
make a yearly report of the financial standing of the seminary to 
the bishop and two canons of the cathedral chapter.?? In the 
United States a few seminaries are conducted by religious or- 
ganizations for no diocese in particular, and any bishop who has 
no seminary of his own may send his seminarians to these institu- 
tions. While the management of these seminaries is entirely in 
the hands of the religious organization, the local Ordinary has in 
virtue of Canons 1381 and 1382 the right to watch over the teach- 
ing and moral conduct of such schools and to visit them for that 
purpose. | 


21 A great deal of useful information for rectors and other officers of 
the seminary is to be found in Micheletti’s works on seminaries—notably 
‘<Constitutiones Seminariorum Clericalium,’’ ‘‘Commentarium in S. C. EE. 
et RR. Decretum et Normas pro Reformatione Seminariorum,’’ ‘‘De Rectore 
Seminariorum Clericalium,’’ ‘‘De Moderatore Spiritus in Sacris Semi- 
nariis.’’ 

22 Acta Ap. Sedis, XIV, 37. 


EE 


CANONS 1371-1375 117 


TITLE XXII 
OF SCHOOLS 


1390. The education of all Catholics from their childhood 
must be such that not only shall they be taught nothing contrary 
to the Catholic faith and good morals, but religious and moral 
training shall occupy the principal place in the curriculum. Not 
only the parents, as mentioned in Canon 1113, but in addition all 
those who take their place, have the right and the most serious 
obligation of providing for the Christian education of the chil- 
dren (Canon 1372). 

In every elementary school the children must, according to 
their age, be instructed in Christian doctrine. The young people 
who attend the higher schools are to receive a fuller religious 
training, and the bishops shall sce that this training is given by 
priests conspicuous for their zeal and learning (Canon 1373). 

1391. Catholic children shall not attend non-Catholic or un- 
denominational schools, nor schools that are mixed (that is to 
say, open also to non-Catholies). The bishop of the diocese alone 
has the right, in harmony with the instructions of the Holy See, 
to decide under what circumstances, and with what safeguards 
against perversion, the attendance of such schools by Catholic 
children may be tolerated (Canon 1374). The Church has the 
right to establish schools of every grade—intermediate and 
higher schools as well as elementary (Canon 1875). 

1392. The Third Plenary Council of Baltimore deals fully 
with the school question in Chapters I and II, Title VI (De 
Catholica Juventutis Institutione). The right of the Church to 
have schools for the Christian education of her children is vindi- 
cated there, and various Papal documents—notably the Brief 
of Pope Leo XIII, February 8, 1884, to the French Bishops— 
are quoted by the Council. The regulations of Canon 1374—that 
Catholics may not send their children to any other than Catholic 
schools, that the bishop alone is to decide when the observance of 
this precept is not possible or not practicable, and that he has the 
right to ascertain whether sufficient provision is made otherwise 
in the case for the religious instruction of the children—are taken 
by the Code from the above-mentioned letter of Pope Leo XIII to 
the Bishops of France. The Third Council of Baltimore abso- 


118 A PRACTIGAL COMMENTARY 


lutely commands that Catholic schools be erected in every parish, 
and that the bishop shall obey this command, tolerating no excuse 
from non-compliance with this order of the Council except im- 
possibility because of the small number of Catholics and their 
inability to contribute sufficient funds for the erection and main- 
tenance of parochial schools. A pastor who does not obey the 
orders of the bishop to establish a parochial school, is to be 
removed from the parish. 

The enemies of the Catholic Church understand very well that 
Catholic schools are the most effective means for the preservation 
of the Catholic faith. Consequently, they deplore the liberty 
that the United States grants to all religions to have their own 
schools, and they are working at present with a diabolical hate to 
incite the great mass of indifferent and tolerant non-Catholic 
citizens to vote against private schools—which means nothing 
else than Catholic schools, for the private schools of the other 
Christian Churches are few. In some states they have succeeded 
in passing a law against private schools, but the Supreme Court 
of the United States has declared such a law unconstitutional. 


CATHOLIC UNIVERSITIES AND ACADEMIC DEGREES 


1393. The canonical erection of a Catholic university or fac- 
ulty is reserved to the Holy See. Even though it is in charge of 
some religious organization, it must have its statutes approved by 
the Holy See (Canon 1376). Academic degrees which are recog- 
nized in canon law can be conferred only by persons to whom this 
power has been granted by the Holy See (Canon 1377). Doctors, 
who have received their degree legitimately, have the right to 
wear outside of sacred functions a ring with a stone and the 
doctor’s biretta, and in the conferring of the various offices and 
ecclesiastical benefices the bishop should give preference, all other 
things being equal, to those who have obtained the doctorate or 
licentiate (Canon 1378). 

The Code speaks of two things, a Catholic university and a 
Catholic faculty. In Europe there are State Universities which 
have a Catholic faculty for theology by agreement between the 
Church and the State. In the United States we have the Catholic 
University at Washington, which has received from the Holy 
See the privilege to confer ecclesiastical degrees. The Holy See 
does not for the present want to confer the title and faculties of 


CANONS 13876-1381 119 


an Ecclesiastical University on any other Catholic school in the 
United States, but desires the bishops to work in unison for the 
perfection of the present Catholic University at Washington, as 
is stated in a letter of His Holiness, Pope Pius XI, to the 
Hierarchy of the United States.?3 

1394. If there are no Catholic elementary or secondary 
schools, spoken of in Canon 1378, it is the duty especially of the 
local Ordinaries to see that they shall be established. Likewise, 
if the public universities are not imbued with the Catholic doc- 
trine and spirit, it is to be desired that a Catholic University be 
erected in the nation or province. The Catholics should not 
refuse to aid according to their means in the building and main- 
tenance of Catholic schools (Canon 1379). 

1395. It is desirable that the local Ordinaries send pious and 
eifted clerics to the lectures of some university or faculty 
founded or approved by the Church, in order that they may there 
pursue especially the studies of philosophy, theology, and canon 
law, and obtain academic degrees (Canon 1380). 

The Holy See allows bishops to send priests to non-Catholic 
universities when the necessity or utility of the diocese requires 
it, but the Sacred Consistorial Congregation has ruled that the 
bishop shall not send clerics until after their ordination to the 
priesthood, and that he shall exercise special vigilance over such 
students. The same regulation applies to the superiors of relig- 
ious organizations, who may send their subjects to such schools.** 


BisHop’s Rigut oF SUPERVISION OVER SCHOOLS 


1396. The religious teaching of youth in all schools whatso- 
ever is subject to the authority and inspection of the Church. 
The local Ordinaries have the right and duty to see that nothing 
is taught or done contrary to faith or good morals in any of the 
schools of their territory. They have, moreover, the right to 
approve the teachers of religion and the books, and to demand 
that, in the interest of religion and morals, teachers and books be 
removed (Canon 1381). : 


23 April 25, 1922 (Acta Ap. Sedis, XIV, 423). In the document of 
Pope Leo XIII, March 21, 1889, by which the Catholic University of America 
was erected as an Ecclesiastical University, it is stated that no other 
Catholic University is to be established without consulting the Holy See 
(Acta S. Sedis, X XI, 517). 

24 Sacred Consist. Cong., April 30, 1918 (Acta Ap. Sedis, X, 237). 


120 A PRACTICAL COMMENTARY 


1397. Local Ordinaries have the right, either in person or 
through others, to visit any schools, oratories, asylums, orphan- 
ages, or any other similar institute or house to investigate all 
matters connected with religious and moral instruction. From 
this visitation the schools conducted by no religious organization 
whatsoever are exempted, unless it is a domestic school for the 
professed members of an exempt organization (Canon 1382). In 
the religious education of the students of any boarding school, 
the rule of Canon 891 must be observed, namely, that the superior 
of the school may not hear the confessions of the students except 
when he is in an individual case requested by a student to hear 
the confession (Canon 1383). 

The right of visitation and supervision of all schools is given 
by the Code to the local Ordinaries, but in exempt organizations 
that right extends merely to the inquiry concerning correct teach- 
ing in matters of faith and morality. The bishop of the diocese 
is appointed by the divine law the guardian of faith and morality 
in his territory. The Code admits no exemption, except in the 
ease of the internal school for professed members in exempt 
organizations, which is of the nature of a family affair and not a 
public place of teaching. The question has been discussed 
whether, under Canon 1382, the minor seminaries of exempt 
religious, in which they train boys who have manifested their 
desire to enter later the community, are exempt from the bishop’s 
visitation concerning religious and moral teaching. Basing its 
arguments on the various sketches of the law of Canon 1382 and 
its final form as adopted in the Code, the ‘‘Commentarium pro 
Religiosis’’ 2° proves that the minor seminaries are not exempt. 
In any case, they are not a merely internal affair of the religious 
community as such. 


TITLE XXTIT 


OF THE CENSORSHIP AND THE PROHIBITION OF 
BOOKS 


1398. The Church has the right to demand that Catholics 
shall not publish any books without first submitting them for 
her judgment and approval, and to forbid for a good reason 


25 Vol. IV (1923), 224, 


CANONS 1382-1385 121 


the reading of books published by anyone. Whatever is pre- 
scribed under this title regarding books, shall be applied also 
to newspapers, periodicals, and all other published writings, 
unless the contrary is certain (Canon 1385). 


CHAPTER I 


OF THE CENSORSHIP OF BOOKS 


1399. Without previous ecclesiastical approval, even laymen 
are not allowed to publish: 

(1) the Books of Sacred Scripture, or annotations and com- 
mentaries on the same; 

(2) books treating of Sacred Scripture, theology, church 
history, canon law, natural theology, ethics, or other religious 
or moral sciences; books or pamphlets of prayers, or of devo- 
tion, or of religious, moral, ascetic, or mystical doctrine and 
instruction, and other works of a similar nature, even though 
they seem conducive to the fostering of piety; finally, other 
writings in general which contain anything that has a special 
bearing on religion or morality ; 

(3) any reproductions whatsoever of sacred images, whether 
they are issued with or without prayers (Canon 1385, § 1). 

1400. The permission to publish books and images spoken of 
in this Canon may be given either by the proper local Ordi- 
nary of the author, or by the local Ordinary of the place where 
the books or images are published, or the local Ordinary of the 
place where they are printed; if, however, any one of the Ordi- 
naries who has a right to give the approval has refused the 
Imprimatur, the author cannot ask it from another without in- 
forming him of the refusal of the first Ordinary. Religious 
authors must also obtain the permission of their major superior 
before publication (Canon 1385, § 2). 


SPECIAL RULE FOR THE SECULAR AND THE RELIGIOUS CLERGY 


1401. Secular clerics are forbidden to publish any book on 
secular topics, or to contribute to or edit daily papers or peri- 
odicals, pamphlets or booklets, without the consent of their Ordi- 
naries. Religious need the permission of both their own major 


122 A PRACTICAL COMMENTARY 


superior and the local Ordinary. For papers and periodicals, 
which attack the Catholic religion or good morals, not even 
laymen shall write anything except for a good and reasonable 
cause, to be approved by the local Ordinary (Canon 1386). 
The Code repeats the law on the censorship and prohibition 
of books as contained in the Constitution ‘‘Officiorum ac Mu- 
nerum’’ of Pope Leo XIII, except that it arranges the various 
points in a different order.” The Constitution of Pope Leo XIII 
also gives a short sketch of the history of the activity of the 
Church in watching over publications which endanger faith and 
morality. The reader may also peruse with profit the Consti- 
tution of Pope Benedict XIV, in which he prescribes the method 
to be followed in the examination and condemnation of books.** 


PUBLICATION OF Marrers RELATIVE TO BEATIFICATION OR 
CANONIZATION, AND INDULGENCES 


1402. Matters pertaining in any manner to the causes of 
beatification and canonization of the servants of God may not 
be published without permission from the Sacred Congregation 
of Rites (Canon 1387). 

By the Constitution ‘‘Celestis Hierusalem’’ of July 5, 1634, 
Pope Urban VIII issued the prohibition contained in Canon 
1387 with reference to the publication of the lives, deeds and 
miraculous powers in life or after death of men and women 
who became famous for extraordinary holiness of life.** The 
Code does not mean to say that permission of the Holy See is 
required to write the life and history of great men and women, 
but it does forbid all writings that have the object of promoting 
their cause of beatification or canonization. It is evident that 
no private authority may publicly advocate the religious vene- 
ration of any deceased person, because the Church has reserved 
that judgment to herself, and she proceeds most cautiously in 
the investigation of the lives of such persons and of the extraor- 


26 January 25, 1897; Acta 8. Sedis, XXIX, 388-400. 

27 Const. ‘‘Sollicita ac provida,’’ July 9, 1753 (Gasparri, ‘‘ Fontes Cod. 
Jur. Can.,’’ II, 404). By Motu Proprio of Pope Benedict XV, March 25, 
1917, the Sacred Congregation of the Index was abolished, and the censor- 
ship of books committed to the Holy Office; the Code confirms this arrange- 
ment (cfr. Canon 247). 

28 Gasparri. ‘‘ Fontes Cod. Jur. Can.,’’ I, 402. 


CANONS 1386-1388 123 


dinary favors that are claimed to have been obtained by indi- 
viduals through their intercession. 

1403. No book, collection, booklet, leaflet, ete., in which con- 
cessions of indulgences are contained, shall be published without 
the permission of the local Ordinary. Explicit permission of 
the Holy See is required for printing in any language an au- 
thentic collection of prayers and good works to which the Holy 
See has attached indulgences, or a list of the papal indulgences, 
or a collection of indulgences, whether this summary was previ- 
ously collected but never approved, or is now to be collected 
for the first time from various concessions (Canon 1388). 

As the Holy See desires to ensure that no fictitious indul- 
gences be published, she does not want any private authority to 
compile lists or collections of indulgences without the approval 
of the Sacred Congregation in charge of indulgences (at present 
the Sacred Penitentiary). Likewise, official collections of in- 
dulgences and indulgenced prayers may not be reprinted in 
any language without permission of the Holy See. If there is 
question of an individual indulgence, or of a summary of in- 
dulgences taken from one Apostolic Rescript or Brief, or of a 
list of indulgences already made public (for instance, in the 
Decreta Authentica of the Sacred Congregation of Indulgences, 
or the Acta Apostolice Sedis), the local Ordinary can give per- 
mission for the reprinting of these indulgences, unless the Papal 
Rescript, Decree, etc., expressly reserves the reprinting of them 
to the Holy See. Canon 1388 is taken largely from the Decree 
of the Sacred Congregation of Indulgences of January 22, 1858.29 
For practical purposes it is necessary that the bishop should 
have power to authorize the publication of indulgences con- 
ceded by public papal documents (e.g., those published in the 
Acta Apostolice Sedis), because, if the permission of the Holy 
See were required also in such instances, the purpose of such 
documents would be to a large extent frustrated. 


PUBLICATION OF COLLECTIONS OF DECREES OF THE HoLy SEE 
AND OF LITURGICAL BooKs 


1404. Collections of Decrees of the Roman Congregations 
cannot be published anew without first obtaining the permission 


29 Decreta Auth., n. 383, Cfr. Beringer, ‘‘Die Ablisse’’ (14th ed.), 
I, p. 148. 


124 A PRACTICAL COMMENTARY 


of, and observing the conditions prescribed by the Prefect of 
the Sacred Congregation in question (Canon 1389). 

Some of the Collections of Decrees of the Roman Congrega- 
tions are private; others are official and made by the Sacred 
Congregations themselves. The Constitution ‘‘Officiorum ace 
Munerum’’ of Pope Leo XIII forbade the publication of Col- 
lections of Decrees of individual Congregations without the per- 
mission of the Prefect of the respective Congregation. The 
Code speaks only of a re-publication of these collections, but 
Blat concludes that it includes a fortiori the unauthorized com- 
pilation and publication of such a collection.*° In any case, no 
bishop would think of approving a work which claims to be a 
Collection of Decrees of any of the Sacred Congregations. Vari- 
ous periodicals intended for the clergy give a reprint, or a 
translation, of current documents of the Holy See, but they are 
not Collections of Decrees in the sense of Canon 1389; they are 
rather a necessary means to spread the knowledge of the Acts 
of the Holy See. The approval of the local Ordinary suffices 
for such publications. 

1405. In the publication of liturgical books, or parts thereof, 
and of litanies approved by the Holy See, the Ordinary of the 
place where the printing is done, or of the place where they 
are published, must attest that the texts as published agree with 
the approved editions (Canon 1390). 

The liturgical books of the Church contain the official cere- 
monies and prayers which the Church employs in the public 
exercise of divine worship. Because of the important bearing 
which these prayers and ceremonies have on the Catholic faith, 
the Church is very cautious in giving her official approval to 
liturgical books, and, once they are approved, she watches care- 
fully lest errors or unauthorized changes should appear in new 
editions. The first or typical edition of a liturgical book may 
be printed only by either the Papal Typographia Polyglotta at 
the Vatican or by one of the so-called Printers to the Holy See, 
who get this permission from the Sacred Congregation of Rites. 
The details of printing a typical edition are outlined in the 
Decree of the Sacred Congregation of Rites, May 17, 1911.** 
Once the typical edition has been completed, any printer may, 


30 Commentarium, IV, n. 277. 
31 Acta Ap. Sedis, IIT, 242. 





EE  ——— 


CANONS 1389-1391 125 


with the approval of the local Ordinary, reprint the liturgical 
books on condition that he follows the original edition, and that 
the Ordinary vouches for the exact concordance of the reprint 
with the original. Concerning the liturgical chant, the Sacred 
Congregation of Rites forbids any one to reprint in whole or 
in part any liturgical chant without its permission, and lays 
down the-rules according to which publishers, under the super- 
vision of the local Ordinary, are to make use of the permission.** 


PUBLICATION. OF TRANSLATIONS OF THE Horny BIBLE 


1406. Translations of the Holy Seriptures in the vernacular 
may not be printed unless they have been approved by the Holy 
See, or are published under the supervision of the bishops and 
provided with annotations taken especially from the holy Fathers 
of the Church and learned Catholic writers (Canon 1391). 

When the Holy Sce approves a translation into one of the 
modern languages, no explanatory notes need accompany the 
text. If the bishop approves of the translation, notes must ac- 
company the translation. There was some uncertainty as to 
the construction of the phrase: ‘‘sub vigilantia Episcoporum et 
cum adnotationibus ...’’ Wherefore, the Committee for the 
Authentic Interpretation of the Code declared that both the 
approval of the bishop and the explanatory notes are required.** 
In the preface to the Clementine, edition of the Vulgate there 
is a prohibition to add the variant readings of other manuscript 
bibles in the margin of the text. The Holy See was asked 
whether this prohibition also forbids to add such readings for 
the benefit of the students at the bottom of the pages of the 
text. The Biblical Commission answered that it was not for- 
bidden to do so.*4 ) 


EXTENT OF THE PERMISSION TO PUBLISH A BooK 


1407. When a work is approved in its original text, the 
approval does not extend to translations into other languages 
or to other editions; wherefore, both the translations and new 

82 August 11, 1905, and August 14, 1905 (Acta S. Sedis, XXXVIII, 
114, 240). 


33 May 20, 1923 (Acta Ap. Sedis, XVI, 113). 
34 November 17, 1921 (Acta Ap. Sedis, XIV, 27), 


126 A PRACTICAL COMMENTARY 


editions of a work already approved need a new approval. If 
various chapters or articles which have appeared in periodicals 
are published separately, they are not considered a new edition, 
and thus do not need a new approval (Canon 1392). 

It seems reasonable to hold with Augustine * that the mere 
printing of additional copies of a work from plates from which 
the work was originally printed is not a new edition in the 
sense of the Code, provided that no alterations in the original 
text are made in the reprint, excepting purely mechanical 
changes or corrections of obvious printer’s errors. What exactly 
is meant by the separate publication of chapters or articles from 
a periodical, is not so certain. Probably, one must hold with 
Blat, Augustine, and others that the Code means only individual 
chapters or articles, and requires a new approval if the chapters 
or articles are published in book form, for such a book cannot 
very well be covered by the term ‘‘excerpta capita.’’ °° 


RULES FOR DIOCESAN CENSORSHIP 


1408. In every episcopal Curia there shall be official censors, 
who shall examine the works to be published. These examiners 
must set aside all respect for persons in the exercise of their 
office, and shall keep before their eyes only the dogmas of the 
Chureh and the universal Catholic doctrine contained in the 
Decrees of General Councils, in the constitutions and orders of 
the Apostolic See, and in the consensus of the approved Doctors. 
The censors should be taken from both the secular and religious 
clergy, and should be men of mature age, of tried learning and 
prudence, who will take the golden mean in approving or re- 
jecting doctrines. 

The censor must give his opinion in writing: if it is favor- 
able, the Ordinary shall give permission to publish, and the 
Imprimatur of the Ordinary shall be preceded by the verdict 
of the censor under his name. Only under extraordinary cir- 
cumstances and in rare cases, when the Ordinary deems this 
course prudent, may the name of the censor be omitted. The 
authors shall never be informed of the name of the censor who 


35 **Commentary,’’ VI, 450. 
86 Blat, ‘‘Commentarium,’’ IV, n. 280; Augustine, ‘‘Commentary,’’ 
VI, 450. 


| 
| 





CANONS 1392-1395 127 


is to examine their book before he has given a favorable opinion 
(Canon 1393), 

1409. The permission of the Ordinary to publish (ie., Impri- 
matur) shall be given in writing, and it shall be printed either 
at the beginning or end of the book or paper, or on the front 
or back of the picture, with his name and the date and place of 
the concession. If permission for publication is to be denied, 
the reasons shall be given at the request of the author, unless 
there is a grave reason why this should not be done (Canon 
1394). 

The commentators do not agree on the question whether the 
favorable opinion of the censor—usually expressed by the words 
‘“‘Nihil obstat,’’ together with his name—should be printed in 
the book above the ‘‘Imprimatur’’ of the Ordinary. It is not 
very plain from Canon 1393 whether the direction that the 
bishop’s permission to publish a book is to be preceded by the 
opinion of the censor with his name, is to be followed in the 
book, or whether it has reference to the document only by which 
permission is given to the author. An examination of works 
recently published will show that the practice is not uniform.%7 


CHAPTER ITI 


OF THE PROHIBITION OF BOOKS 


1410. The right and duty to prohibit books for a good reason 
is vested not only in the Supreme Pontiff for the Universal 
Church, but also in the particular Councils and the local Ordi- 
naries for their respective subjects. An appeal from the pro- 
hibition of inferior authorities may be made to the Holy See, 
but not in suspensivo (which means that the prohibition must 
be obeyed until Rome has rescinded the orders of the inferior 
authority). The abbot of an independent monastery, and the 
supreme superior of an exempt clerical religious body, may also 
with their respective Chapters or Councils forbid books to their 
subjects for a good reason; this same authority is possessed by 
other major superiors with their council in casey where imme- 
diate action becomes necessary, but they are bound to refer the. 
matter as soon as possible to the supreme superior (Canon 1395). 


87 Cocchi, ‘‘Commentarium,’’ VI, n. 64. 


128 A PRACTICAL ,COMMENTARY 


As the Code states that the prohibition of particular Coun- 
ceils and of the local Ordinaries affects their respective subjects 
only, exempt religious and persons who have not a domicile or 
quasi-domicile in the territory of these authorities are not bound 
by the prohibition, nor are their subjects bound during their 
absence from the territory (cfr. Canon 13). The rule of the 
Code which gives power to abbots and the supreme heads of 
exempt organizations of religious to forbid books to their sub- 
jects, is a departure from the former law, which gave these 
superiors no jurisdiction over the matter of the prohibition of 
books; at most, they could forbid their subjects to read certain 
books by the domestic power (potestas dominativa), which is 
possessed by all religious superiors over their subjects. 

1411. Books condemned by the Holy See shall be considered 
forbidden everywhere and in every language into which they 
are translated (Canon 1396). 

The Holy See has repeatedly urged the bishops to watch over 
the books published in their respective dioceses and to forbid 
those which they find dangerous to faith or morality. For, as 
the Holy See explains, it is impossible for the Sacred Congre- 
gation in charge of this matter to stop pernicious books as 
promptly as should be done, and, since a good deal of time 
elapses in some cases before a book is brought to the notice of 
the Holy See, much harm may be done by such a book in the 
meantime.** 


Dury to Assist THE CHURCH IN THE PROHIBITION OF BooKs 


1412. It is the duty of all the faithful—and especially of 
the clergy, of ecclesiastical dignitaries, and of men of distin- 
euished learning—to report to the local Ordinaries or to the 
Holy See books which they consider pernicious. This duty per- 
tains by special title to the legates of the Holy See, to local 
Ordinaries, and to rectors of Catholic Universities. It is advis- 
able that the denunciation of a book should not only give its 
title, but also, in so far as possible, the reasons why a book is 
thought to deserve condemnation. Those to whom a book is 
denounced are by sacred duty bound to keep secret the names 


38 Sacred Congregation of the Index, Aug. 24, 1864 (Coll. de Prop. Fide, 
Lm Ow). 





CANONS 1396-1398 129 


of those who denounce it. The local Ordinaries must, either in 
person or if necessary through other capable priests, watch 
over the books which are published or sold in their territory. 
The Ordinaries shall refer to the judgment of the Holy Sce 
those books which require a more searching examination, or 
which for their effective prohibition seem to demand the con- 
demnation of the Supreme Authority (Canon 1397). 

In the document that condemned modernism, Pope Pius X 
stated that the local Ordinaries can, and are bound to, forbid 
books which, after due consultation with learned men, they judge 
to be harmful to faith or morality in their diocese, notwith- 
standing the fact that the books are published with the elm pri- 
matur’’ required by Canon Law. The Supreme Pontiff explains 
that at times the approval is given too readily, as a result of 
excessive confidence in the author; besides, he argues, what may 
not be harmful in one place, may be so in another.®® 


CONSEQUENCES OF THE PROHIBITION or A Book 


1413. The prohibition of books has this effect, that the for- 
bidden books may not without due permission be published, read, 
retained, sold, or translated into another language, or com- 
municated to others in any manner. <A book which has in any 
way been forbidden may not again be published, until the de- 
manded corrections have been made, and the authority which 
forbade the book, or his superior or successor, has given per- 
mission to publish it (Canon 1398). 

Catholic book dealers cannot keep forbidden books in their 
stores without the permission of the bishop, if he forbade the 
books in question, or without permission of tbe Holy See, if 
the books were forbidden either by the general laws of the Code 
or by the special prohibition of the Holy See. If they get per- 
mission to keep such works, they may sell them only to those 
who, they have reason to believe, enjoy permission to read them. 


Books ForBIDDEN BY LAW 


1414. By the law itself are forbidden: 
(1) editions of the original text or of ancient Catholic ver- 
sions of the Sacred Scriptures (including those of the Oriental 


89 Encyclical, ‘‘Pascendi,’’ Sept. 8, 1907 (Acta 8. Sedis, XL, 593-650). 


130 A PRACTICAL COMMENTARY 


Church), published by any non-Catholics whatsoever; likewise 
translations of these texts made or published by non-Catho- 
lies; 

(2) books of any writers defending heresy or schism, or 
tending in any way to undermine the very foundations of re- 
ligion ; 

(3) books which avowedly attack religion or good morals; 

(4) books of any non-Catholies treating professedly of re- 
ligion, unless it is certain that they contain nothing contrary 
to the Catholic faith; 

(5) books of Sacred Scripture, notes and commentaries 
thereon, and translations which have been published without the 
permission required by Canon 1385 and Canon 1391; books 
and pamphlets which give an account of new apparitions, reve- 
lations, visions, prophecies, or miracles, or which introduce new 
devotions (even if it is claimed that the devotions are private), 
unless the precepts of the Canons regarding their publication 
have been observed ; 

(6) books which attack or ridicule any of the Catholic 
dogmas, or which defend errors condemned by the Holy See, 
or which disparage divine worship, or strive to overthrow eccle- 
siastical discipline, or which have the avowed aim of defaming 
the ecclesiastical hierarchy or the clerical or religious states; 

(7) books which teach or approve of any kind of supersti- 
tion, fortune-telling, divination, magic, communication with 
spirits, and other things of that kind; 

(8) books which declare duels, suicide, or divorce as licit; 
which treat of the masonic and other similar sects, and contend 
that these are not pernicious, but rather useful to the Church 
and civil society ; 

(9) books which professedly discuss, deseribe or teach im- 
pure and obscene topics; 

(10) editions of liturgical books approved by the Holy See, 
which have been unlawfully changed in some particulars so 
that they no longer agree with the authentic and approved 
editions ; 

(11) books which publish indulgences which are apocryphal, 
or which have been condemned or recalled by the Holy See; 

(12) any images whatsoever of our Lord, of the Blessed 
Virgin, of the angels, or of the saints or other servants of God, 





CANONS 1399-1400 131 


which are not in harmony with the spirit and the Decrees of 
the Church (Canon 1399). 

1415. In connexion with these twelve classes of books, which 
are prohibited by law without further condemnation on the 
part of the local Ordinary or the Holy See, one must keep in 
mind the rule of Canon 1384, which declares that whatever is 
said by the Canons of Title XXIII about books applies likewise 
to daily papers, periodicals, and other publications, unless it is 
clear from the Code that books only are meant. N. 3 of this 
list of forbidden books mentions books which avowedly attack 
religion or good morals; it is not certain whether the Code means 
books which attack the Catholic religion, or those which attack 
religion generally. The commentators are divided, but it seems 
that the prohibition extends, not only to books and other publi- 
cations which attack the teaching of the Catholic Church, but 
also to all books which undermine the foundations of religion— 
for instance, atheistic, materialistic publications.*° 


PERMISSION TO READ CERTAIN PROHIBITED Books GIvEN By LAW 


1416. Books mentioned in Canon 1399, n. 1, and books pub- 
lished in violation of Canon 1391, are allowed to be read by 
those only who are in any way engaged in theological or biblical 
studies, provided these books are faithful and complete copies 
of the originals, and do not in their introduction, or in their 
notes, attack the dogmas of the Catholic faith (Canon 1400). 

For the purpose of facilitating the study of the Sacred Serip- 
tures, which the Church wants to encourage, the law itself grants 
permission to all students of the Bible or of theology in general 
(laymen or clerics, in private study or in a school) to have and 
use editions of original texts and ancient Catholic versions of 
the Bible and translations into other languages, even though 
these were published by non-Catholics. If, however, these edi- 
tions and translations attack Catholic dogmas in the introduction 
or in the notes, or if they are not faithful and complete copies 
of the original texts or of ancient Catholic versions, they are 
forbidden to students as well as to others. If students need to 
consult such forbidden bibles, they must obtain permission to 
read them. 


40 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 733. 


132 A PRACTICAL COMMENTARY 


1417. Cardinals and bishops (both residential and titular), 
and other Ordinaries, are not bound by the ecclesiastical pro- 
hibition of books, provided they employ the necessary precau- 
tions (Canon 1401). 

The term ‘‘Ordinaries’’ includes (besides residential bishops) 
abbots and prelates nullius, vicar-generals, administrators of 
a diocese, vicars and prefects Apostolic, administrators of a 
prefecture or vicariate, and major superiors of clerical exempt 
organizations of religious (cfr. Canon 198). 


MANNER OF OBTAINING PERMISSION TO READ FORBIDDEN Books 


1418. In the case of books forbidden by the general law of 
the Church or by Decree of the Holy See, Ordinaries can give 
their subjects permission to read only individual books and in 
urgent cases only. If the Ordinaries have obtained from the 
Holy See a general faculty to allow their subjects to keep and 
read forbidden books, they shall grant this permission only 
with diseretion and for a good and reasonable cause (Canon 
1402). 

Persons who have obtained from the Holy See the permis- 
sion to read and keep forbidden books cannot for that reason 
read and keep books forbidden by their own Ordinaries, unless 
the Apostolic indult explicitly grants them the faculty to read 
and keep books forbidden by any authority. Moreover, they 
are bound by grave precept to guard the forbidden books in 
such a manner that they shall not fall into the hands of others 
(Canon 1403). 

1419. Bookdealers shall not sell, loan, or keep books which 
treat professedly of obscene matters. Furthermore, they shall 
not have other forbidden books for sale, unless they have ob- 
tained the proper permission from the Holy See, nor shall they 
sell them to any one unless they can reasonably judge that the 
buyer legitimately asks for them (Canon 1404). 

1420. The permission to read forbidden books exempts nobody 
from the prohibition of the natural law, which forbids the read- 
ing of books which are for the particular reader a proximate 
occasion of sin. Local Ordinaries and others who have the care 
of souls shall on opportune occasions warn the faithful of the 





CANONS 1401-1405 133 


danger and harm of reading bad books, especially such as have 
been forbidden (Canon 1405). 

The Constitution ‘‘Officiorum ae Munerum’’ of Pope Leo 
XIII (cap. IV, n. 10) discussed the question of obscene ancient 
and modern classics, and ruled that they might be read only by 
those whose office or position as teacher required it. The Code 
has no ruling of this kind. Hf some person is forced to read 
these books because the school at which he is, and from which 
he cannot easily get away, insists on having these impure classics 
as text-books, the positive law of the Church does not oblige 
under the circumstances, but he has to employ the necessary 
means to make the danger to his soul as remote as possible. 
No necessity or reason can ever excuse one from doing what is 
a proximate danger of sin in.one’s individual case. It is impos- 
sible to give an absolute rule as to what is a proximate, and 
what a remote danger of sin: that depends on the character 
and disposition of the individual, though it cannot be denied 
that certain things are of their nature greater temptations to 
sin than others. With reference to the penalties for the viola- 
tion of the laws on forbidden books, cfr. Canon 2318. 


TITLE XXIV 
OF THE PROFESSION OF FAITH 


1421. The following persons are bound to make the profes- 
sion of faith according to the form approved by the Holy See: 

(1) Those who assist, either with a decisive or a consultive 
vote, at a General or Particular Council or diocesan synod. 
The profession of faith is to be made by the members in the 
presence of the president of the assembly or his delegate, while 
the president makes it in the presence of the council or synod; 

(2) persons promoted to the dignity of Cardinals in the 
presence of the Dean of the Sacred College, the first Cardinal 
Priest and Cardinal Deacon, and the Camerlengo of the Holy 
Roman Church ; 

(3) persons promoted to an episcopal see (residential or 
titular), to the government of an abbey or prelacy nullius, or 
to a vicariate and prefecture Apostolic, in the presence of a 
delegate of the Apostolic See; 


134 A PRACTICAL COMMENTARY 


(4) the viecar-capitular in the presence of the Cathedral 
Chapter ; | 

(5) persons promoted to an ecclesiastical dignity or canonry 
in the presence of the local Ordinary (or his delegate) and the 
Chapter; 

(6) persons appointed to the office of diocesan consultor in 
the presence of the local Ordinary (or his delegate) and the 
other consultors; 

(7) the following persons in the presence of the local Ordi- 
nary (or his delegate): the vicar-general, pastors, and others 
obtaining any kind of benefice (though removable) to which 
the care of souls is attached; the rector and professors of sacred 
theology, canon law and philosophy in seminaries (who must 
make the profession at the beginning of each scholastic year, 
or at least on first undertaking their office) ; all candidates for 
subdeaconship; the censors of books, mentioned in Canon 1393; 
priests approved for confession and preaching, before they re- 
ceive the faculty to exercise these offices; 

(8) the rector of a Catholic University or Faculty in the 
presence of the local Ordinary (or his delegate) ; all professors 
of a canonically erected University or Faculty at the beginning 
of each scholastie year (or, at least, on assuming their office), and 
those who after examination receive academic degrees, in the 
presence of the rector of the University or Faculty (or his dele- 
gate) ; 

(9) superiors in clerical religious organizations in the pres- 
ence of the Chapter or the superior who appointed them (or 
their delegate). ? 

A cleric who relinquishes a former and obtain a new office, 
benefice, or dignity, even of the same species, must again make 
the profession of faith, as required by this Canon (Canon 1406). 

1422. The formula of the profession of faith will be found 
preceding the Appendices in the present volume. The Code does 
not oblige the professors of theology and philosophy in the 
schools of the religious organizations to take the oath, as it 
speaks only of professors of seminaries, which term is used by 
the Code to designate the diocesan seminary. However, the 
Holy Office ruled that the laws of Pope Pius X against the 
errors of modernism, though not embodied in the Code, are 
for the present, and until the Holy See shall decree otherwise, 


CANONS 1406-1499 135 


to remain in full foree.4? In one of these documents, the Motu 
Proprio ‘‘Sacrorum Antistitum,’’ 4? the profession of faith and 
the oath against modernism must be taken by practically all 
the men enumerated in Canon 1406, and also by the professors 
of philosophy, theology and Canon Law in the schools of religious 
organizations. These religious make the oath and the profes- 
sion of faith in the presence of the major superior or his dele- 
gate.*8 

The obligation of making the profession of faith is not satis- 
fied by making it through a proxy or in the presence of a 
layman (Canon 1407). Every custom contrary to the Canons 
of this Title of the Profession of Faith is condemned (Canon 
1408). 


PART FIVE 


OF BENEFICES AND OTHER NON-COLLEGIATE 
INSTITUTES OF THE CHURCH 


TITLE XXV 


OF ECCLESIASTICAL BENEFICES 


1423. An ecclesiastical benefice is a juridical entity, perma- 
nently constituted or erected by the competent ecclesiastical 
authority, and consisting of a sacred office and the right to 
receive the revenue accruing from the endowment of such office 
(Canon 1409). 

The endowment of a benefice consists either of goods owned 
by the benefice itself as a juridical entity, or of definite obliga- 
tory payments of some family or moral person, or of definite 
voluntary offerings of the faithful which belong to the rector 
of a benefice, or of so-called stole fees received according to 
and within the limits of the diocesan taxation or legitimate 

41 March 22, 1918 (Acta Ap. Sedis, X, p. 136). 

42 Motu Proprio ‘‘Sacrorum Antistitum,’’ September 1, 1910 (Acta Ap. 
Sedis, II, 655); the oath against modernism is given in this document 
(ibid., II, 669). Condemnation of modernism and rules for guarding 
against it are given in the Encyclical ‘‘Pascendi Gregis,’’ of Pope Pius 
X, September 8, 1907 (Acta S. Sedis, XL, 593). 


43 Declarations on the ‘‘Sacrorum Antistitum’’ by the Sacred Con- 
sistorial Congregation, September 25, 1910 (Acta Ap. Sedis, II, 740). 


136 A PRACTICAL COMMENTARY 


custom, or of choir distributions, one-third of which are excluded 
if the entire revenue of a benefice consists of choral distribu- 
tions (Canon 1410). 

The question whether there are benefices in the United States 
is not of much practical value. There is no objection if the 
bishop chooses to raise parishes to the status of a benefice; also, 
chaplaincies in the various ecclesiastical institutions might be 
erected into benefices. The requirements are that the bishop 
formally declare a certain office, together with its revenue, a 
benefice for all time. This objective perpetuity is essential to 
a benefice, as the holder of the benefice may or may not have a 
right for life to hold and enjoy the benefice. 


Various Kinps or BENEFICES 


1424. Ecclesiastical benefices are called: 

(1) consistorial, if they are usually conferred in consistory 
(for instance, bishopries in the United States) ; others are known 
as non-consistorial ; 

(2) secular or religious, according as they concern exclu- 
sively the secular or the religious clergy. However, all benefices 
erected outside the churches or houses of religious are in case 
of doubt presumed to be secular benefices ; 

(3) double (or residential) or simple (or non-residential), 
according as the duty of residence is, or is not attached to the 
benefice besides the other duties incumbent on the holder of 
the benefice ; 

(4) manual (temporary, or removable) or perpetual (or 
wremovable), according as they are conferred either revocably 
or permanently ; 

(5) curate (curata) or non-curate (non-curata), according as 
the care of souls is or is not attached to the benefice (Canon 
1411). 


OFFICES WHICH Arg Not BENEFICES IN Law 


1425. Though the following offices and positions bear some 
similarity to the benefices, they do not in law come under the 
name of benefices: 

(1) parochial vicarships which are not erected permanently 
(the office of vicarit cooperatores, assistant priests in parishes, 


CANONS 1410-1413 137 


could be erected into benefices, but in the United States it has 
not been the custom to make them such) ; 

(2) laical chaplaincies, namely those that are not erected by 
the competent ecclesiastical authority ; 

(3) coadjutorships, with or without the right of future suc- 
cession ; 

(4) personal pensions (because of their lack of objective 
perpetuity) ; 

(5) temporary commenda, which consists in the cession to 
some person of the revenues of a church or monastery in such 
a manner that, with the death of the person holding the com- 
menda, the revenues revert to the church or monastery (Canon 
1412). 


MEANING OF THE TERM BENEFICE IN THE CANONS ON BENEFICES 


1426. Unless the contrary is evident, the following Canons 
refer exclusively to non-consistorial benefices properly so-called. 
Canons 147-195 on appointment to ecclesiastical offices are to 
be observed also in appointment to offices to which a benefice is 
attached (Canon 1413). From the first sentence in this Canon, 
it is evident that the offices mentioned in Canon 1412 are not 
affected by the succeeding Canons, nor is the episcopal benefice, 
which is per se consistorial, though in some dioceses the right 
of election or nomination or presentation has been conceded to 
others by the Holy See. 


CHAPTER I 


OF THE CONSTITUTION OR ERECTION OF BENEFICES 


1427. Consistorial benefices can be erected by the Holy See 
only. Besides the Roman Pontiff, the Ordinaries may erect in 
their respective territories non-consistorial benefices, without 
prejudice to Canon 394, which reserves to the Holy See the 
erection of dignities in the Cathedral Chapter. (Since there 
are no Cathedral Chapters in the United States, these benefices 
commonly had in Chapters are unknown in this country.) 
Vicars-general cannot erect benefices without a special mandate 
from their Ordinary. Cardinals, however, may erect in the 


138 ‘A PRACTICAL COMMENTARY 


church of their title benefices to which no care of souls is at- 
tached, unless the church belongs to an exempt clerical organi- 
zation of religious (Canon 1414). 


CONDITIONS TO BE OBSERVED IN THE ERECTION oF BENEFICES 


1428. Benefices should not be erected unless there is assured 
a stable and sufficient endowment, from which revenues accrue 
perpetually in the manner specified in Canon 1410. If the 
endowment consists of a set sum of money, the Ordinary, after 
consultation with the diocesan board of administration, spoken 
of in Canon 1520, shall take care to have the money as soon as 
possible invested in safe and fruitful real estate or bonds. It 
is, however, not forbidden to erect parishes or quasi-parishes, 
where a proper endowment cannot be had, if one can prudently 
foresee that the necessary revenues will be obtained from other 
sources (Canon 1415). 

The Code allows a great deal of latitude with regard to 
the so-called endowment of a benefice. In Canon 1410 a number 
of ways are enumerated by which the necessary revenue for the 
benefice may be obtained, and even the voluntary offerings of 
the faithful may serve as an endowment, as long as the bishop 
is morally certain that they will contribute sufficient to main- 
tain the priest and church respectably. 

1429. Before the erection of a benefice, the persons con- 
cerned, if there be any, should be called and given a hearing 
(Canon 1416). 

The obligation on the part of the local Ordinary to inform 
the interested parties of the erection of a new benefice, and to 
listen to reasonable objections, will frequently occur in the erec- 
tion of new parishes. Thus, for instance, both the pastor and 
the people of a parish which is to be divided are interested 
parties, especially in the circumstances of the Church in the 
United States, where the people by their contributions must 
bear the entire burden of erecting the necessary buildings and 
of paying the salaries of the priests and of others needed in 
the service of the parish. Again, if a parish is to be estab- 
lished where there was none before, it is a question whether 
the people are able and willing to undertake the heavy burden 
of founding a new parish. 


CANONS 1414-1418 139 


STIPULATIONS THAT MAy BE MADE By FOUNDER OF A BENEFICE 


1430. In establishing a benefice, the founder may with the 
consent of the Ordinary stipulate even conditions contrary to 
the common law, provided they are not discreditable or incom- 
patible with the nature of the benefice. Once the stipulations 
have been accepted, the Ordinary cannot validly suppress or 
change them, unless the change is favorable to the Church, and 
the consent of the founder himself—or of the patron, if there 
is question of the right of patronage—is obtained (Canon 1417). 

It is evident that the Church wants to encourage pious 
foundations, for she grants the founder the extraordinary privi- 
lege of adding stipulations which are contrary to the common 
law, and she protects the agreement between the founder and 
the Ordinary to such an extent that the Ordinary cannot modify 
the agreement except with the consent of the founder. Changes 
which are to the disadvantage of the Church cannot be made, 
even with the consent of the Ordinary and the founder.’ 


FoRMAL ERECTION OF BENEFICES 


1431. The erection of benefices is to be effected by a legal 
document, which shall define the place where the benefice is 
erected, and describe the endowment of the benefice and the 
rights and obligations of the beneficiary (Canon 1418). 

By this formal document, the benefice obtains the nature of 
a legal personality capable of legal rights. It seems that, by 
Canon 100, the document is essential to the constitution of a 
benefice. In the United States the laws of the Church are not 
recognized by the State. Wherefore, if the benefice 1s to have 
a legal standing before the civil law, it must be incorporated 
under the laws of the respective state. 


1 Cocchi, ‘‘Commentarium,’’ VI, n. 90. 


140 A PRACTICAL COMMENTARY 


CHAPTER II 


OF THE UNION, TRANSFER, DIVISION, DISMEMBERMENT, 
CONVERSION AND SUPPRESSION OF BENEFICES 


1432. The union of benefices is: 

(1) extinctive, if out of two or more benefices only one new 
benefice is created, or one or several are united to another in 
such a manner that they cease to. exist; 

(2) equally principal, if the united benefices remain the 
same as they were before, without the subordination of one to 
the other ; 

(3) less principal, or by subjection or accession, when the 
various benefices remain, but one or more are subordinated to 
another as an accessory to the principal benefice (Canon 1419). 

In the extinctive union, the benefice which emerges or re- 
mains has all the rights and obligations of the extinct benefices, 
and, if they are incompatible, the better and more favorable 
rights and obligations are to be retained. In the equally prin- 
cipal union, each benefice preserves its nature, rights and obli- 
gations, but in virtue of the effected union the titles to the 
various united benefices must be conferred on one and the same 
cleric. In the less principal union, the accessory benefice follows 
the principal one, so that the cleric who obtains the principal 
benefice also acquires by that very fact the accessory benefice, 
and must fulfill the obligations of both (Canon 1420). 

In the United States the union of benefices is practically 
unknown, except perhaps in the instance of combining several 


parishes into one in cases where the population has moved in. 


large numbers from a district where there were several parishes 
formerly, but where it has later become unnecessary or impos- 
sible to maintain several parish churches. 

1433. The transfer of a benefice occurs when the seat of the 
benefice is changed from one place to another; the division of 
a benefice occurs when two or more benefices are made out of 
one; dismemberment occurs when a part of the territory or of 
the goods of a benefice is withdrawn and assigned to another 
benefice or to a charitable or other ecclesiastical institute; con- 
version means the change of a benefice into a specifically dif- 
ferent benefice; suppression means the complete extinction of 
the benefice (Canon 1421). 


CANONS 1419-1422 141 


1434. To the Holy See is reserved: the extinctive union of 
benefices, their suppression, and the dismemberment which is 
effected by taking away the goods of a benefice without erecting 
a new benefice; also the equally and less principal union of a 
religious benefice with a secular benefice, or the reverse; like- 
wise, any transfer, division and dismemberment of a religious 
benefice (Canon 1422) .? 

Since the extinctive union, the suppression and the dismem- 
berment of benefices entail the exercise of the power of eminent 
domain in the disposition of ecclesiastical goods contrary to 
the rights of individual ecclesiastical persons (for each benefice 
is an ecclesiastical person), the supreme power of the Church, 
to the exclusion of all other authorities, has the power to deprive 

these persons of their rights. The same reason applies to the 
union of a religious with a secular benefice or the reverse, 
because in this case also certain rights of the one or the other 
legal person are invaded. The transfer, division and dismem- 
berment of religious benefices is reserved to the Holy See, no 
distinction being made between exempt and non-exempt organi- 
zations. The parishes held by religious do not come under this 
rule of Canon 1422, but rather under the special provision of 
Canon 1427, wherein power is given to the local Ordinary to 
dismember or divide the religious parishes in the same manner 
as he can divide the secular parishes. 


PoweER oF LOCAL ORDINARIES TO EFFECT A UNION OF BENEFICES 


1435. Local Ordinaries, but not the vicar-capitular, nor the 
vicar-general without a special mandate, may because of the 
needs or the great and evident interest of the Church, effect an 
equally or less principal union of parish churches among them- 
selves or with a non-curate benefice, provided in the latter case 
that in a less principal union of a parish with a non-curate 
benefice the non-curate benefice be made accessory to the paro- 
chial benefice. 

Local Ordinaries, however, cannot unite a parish with the 
mensa episcopalis or capitularis, with monasteries, churches of 
religious or other moral persons, nor with the dignities and 


2The dismemberment of parishes is within the power of the bishop 
(Sacred Cong. of the Council, Jan. 14, 1922; Acta Ap. Sedis, XIV, 229). 


142 A PRACTICAL COMMENTARY 


benefices of a cathedral or collegiate church. They may, how- 
ever, unite a parish with the cathedral or collegiate church when 
the latter is situated within the territory of the parish, the 
union being such that the revenues of the parish go to thé 
benefit of the cathedral or collegiate church, while the pastor 
or parochial vicar is left a portion sufficient for his maintenance. 
No union of benefices can be made by the local Ordinaries unless 
it is in perpetuity (Canon 1423). 

1436. The Ordinaries may never unite any curate or non- 
curate benefice to the detriment of the actual beneficiaries con- 
trary to the wish of the latter; nor unite a benefice over which 
somebody has the right of patronage with a benefice of free 
appointment without the consent of the patron; nor a benefice 
of one diocese with a benefice of another diocese, though both 
dioceses are united by equally principal union and governed by 
one and the same bishop; nor exempt benefices or benefices re- 
served to the Holy See with any other benefices (Canon 1424). 


PARISHES UNITED witH Hovusss or RELIGIOUS 


1437. If a parish is united by the Holy See with a religious 
house with respect to the temporalities only, the religious house 
has merely the right to the revenues of the parish, and the 
superior must present a priest of the secular clergy to the 
bishop of the diocese to be instituted as pastor, assigning to such 
priest a proper portion of the revenues. If a parish is united 
with a religious house in full right (pleno jure), it becomes a 
religious parish, and the superior has the right to nominate 
a priest of his religious organization to exercise the care of 
souls, but the local Ordinary has the right to examine and insti- 
tute him, and he is subject to the jurisdiction, correction and 
visitation of the local Ordinary in affairs relative to the care 
of souls, as specified in Canon 631 (Canon 1425). 

Canon 1423 rules that local Ordinaries have no right to 
unite parishes with monasteries, churches of religious, or any 
other legal body, an exception being made in favor of cathedral 
and collegiate churches. Indirectly, therefore, Canon 1423 re- 
serves the right of combining a parish with a religious house 
or church to the Holy See. The same law was in force before 
the promulgation of the Code. The union of a parish with 


CANONS 1423-1425 143 


a religious house or church has this effect, that the religious 
community becomes entitled to the entire revenue of the parish, 
and is not bound to give an account to the bishop of the diocese 
of the receipts and expenditures in countries which are under 
the common law of the Church. This is clear from the Consti- 
tution ‘‘Romanos Pontifices’’ of Pope Leo XIII, in which it is 
stated that Pope Urban II and other Popes have ruled that 
religious must indeed be held liable to the bishop for the exer- 
cise of the care of souls, but that in temporal affairs these 
parishes are accountable, not to the bishop, but to the monastery.’ 
In countries subject to the Sacred Congregation of the Propa- 
ganda, the same Constitution obliges religious to give an account 
of the revenue of the parish in the same manner as required of 
secular priests. 

In former times religious were not to assume the care of 
souls, even when the parish had been united with the religious 
house in full right, but they were to present a secular priest 
to the bishop for the exercise of the care of souls and allow 
him a sufficient portion of the parish revenue for his mainte- 
nance, Hence the religious often looked for secular priests who 
would demand but a small salary, and many complaints were 
heard that incompetent men were entrusted with the care of 
the spiritual administration of the parish. The Council of Trent 
tried to stop these abuses by insisting that these so-called paro- 
chial vicars must be competent men, that their appointment was 
to be permanent unless the local Ordinary judged otherwise, 
and that one-third of the revenue of the parish—or at the dis- 
eretion of the local Ordinary a greater or lesser portion—was 
to be assigned to them by the religious.* 


TRANSFER OF BENEFICES BY LOCAL ORDINARIES 


1438. If the needs or the great and evident advantage of the 
Church demands it, Ordinaries can transfer a secular parochial 
benefice from one place to another within the same parish. 
Other benefices, however, can be transferred only when the 
churches in which they were founded have collapsed and cannot 
be repaired: in this case they may be transferred to the mother 


3May 8, 1881 (Collectanea de Prop. Fide, II, n. 1552). 
4Sessio VII, cap. 7, De Reform. 


144 A PRACTICAL, COMMENTARY 


church (that is to say, the church by which the now collapsed 
church was founded), or to other churches of the same or a 
neighboring place, with all the revenues and the obligations 
attached to the former church, and if possible altars or chapels 
should be erected under the same titles as in the original church 
(Canon 1426). 


DIVISION AND DISMEMBERMENT OF PARISHES By LocAL ORDINARIES 


1439. For a just and canonical cause, Ordinaries may divide 
any parishes whatsoever—even against the will of their rectors 
and without the consent of the people—by erecting a ‘‘ perpetual 
vieariate’’ (vicarta perpetua) or a new parish, or they may 
dismember the territory of any parish. 

The only canonical reason for dividing or dismembering a 
parish is, if the people find it very difficult to attend the parish 
church, or the congregation is too numerous to permit their 
spiritual welfare to be properly cared for by the appointment 
of assistants to the pastors. 

On dividing a parish, the Ordinary must assign to the new 
‘“nerpetual vicariate’’ or to the new parish an appropriate por- 
tion of goods, observing the law of Canon 1500. If there is 
no other source of revenue, the goods to be assigned to the new 
parochial ‘‘vicariate’’ or the new parish are to be taken from 
any of the goods or revenue of the mother-church, provided a 
sufficient amount of income is left for this church. 

If the perpetual parochial ‘‘vicariate’’ or the new parish is 
endowed by revenues of the church from which it has been 
separated, it must show respect to the mother-church in the 
manner and within the limitations to be specified by the Ordi- 
nary; he is, however, forbidden to reserve to the mother-church 
the exclusive right of administering the Sacrament of Baptism. 

If a parish belonging to some religious organization is di- 
vided, the ‘‘perpetual vicariate’’ or the new parish does not 
belong to the religious; likewise, when a parish in which the 
right of patronage exists is divided, the new parish is free from 
the right of patronage, so that the Ordinary ean freely bestow 
the new parish on a priest without the intervention of the patron 
of the mother-church (Canon 1427). 

1440. The division of parishes is a matter of practical im- 


CANONS 1426-1427 145 


portance, especially in countries like the United States, where 
immigration, the rapid shifting of the population, and other 
causes, frequently necessitate the erection of new parishes. 
The rules of the Code are quite explicit, and far-reaching power 
is given to local Ordinaries for the division of parishes whenever 
the spiritual interests of the people demand the erection of new 
parishes. The vicariw perpetuew of which the Code speaks are 
practically the same as new parishes, with the distinction that 
the priest in charge of a ‘‘parochial vicariate’’ does not have 
the title of pastor; he has all the rights and duties of a pastor. 
‘*Parochial vicariates,’’ created by separating part of a parish 
and erecting the separated territory into a ‘‘ parochial vicariate,’’ 
are mentioned in the laws of the Decretals.° In the United 
States the original parish usually builds one or several chapels 
in outlying districts of the parish, and the pastor attends to 
these stations through his assistants until the Ordinary judges 
that a resident priest can be supported by the station; the 
station is then erected into a parish. 

Canon 1500, which speaks of the division of the territory 
belonging to legal ecclesiastical persons, has application to the 
division of parishes, for a parish is a legal or moral ecclesiasti- 
cal person. That Canon rules that the common goods which 
were destined for the benefit of the entire territory, and also 
the debts contracted for the entire territory, are to be appor- 
tioned in equitable proportion between the old and the new legal 
person. In the division of parishes in the United States the 
financial difficulties involved are often very great. Usually the 
parishes are not clear of debts, and there are no goods to be 
divided, for the parishes usually have no other goods or income 
than the voluntary offerings of the faithful. The new parish 
to be erected from the territory of the old parish will have to 
ineur heavy debts to build a church, school, priest’s residence, 
convent for the Sisters teaching at the parochial school, so that 
it would be seareely just to ask the new parish to assume part 
of the debt of the mother-church. The local Ordinary must 
decide on whatever is just and equitable in the ease, and respect 
the special laws governing certain legal persons (for instance, 
religious organizations). 

1441. The Code gives the bishop power to divide or dis- 

5 Decretal, Greg. IX, ¢. 3, De Ecclesiis edificandis, lib, IIT, tit. 48, 


146 A PRACTICAL COMMENTARY 


member any parishes, whether secular or religious, and it rules 
that the religious organization has no right to a new parish 
which is created by the division of their parish. Canon 1427 
thus modifies Canon 1422, which, in reference to benefices gen- 
erally, states that the division and dismemberment of religious 
benefices is exclusively reserved to the Holy See. 


MANNER OF PROCEDURE BY THE LOCAL ORDINARY IN EFFECTING 
CHANGES IN BENEFICES 


1442. Local Ordinaries shall accomplish the union, transfer, 
division, or dismemberment of benefices by authentic document, 
and shall before taking action consult the Chapter (or diocesan 
consultors) and any persons that may be interested, especially 
the rectors of churches. The union, transfer, division, or dis- 
memberment of benefices made without a canonical cause is null 
and void. Against the decree of the Ordinary uniting, trans- 
ferring, dividing, or dismembering benefices, recourse may be 
had to the Holy See in devolutivo only—that is to say, the 
bishop’s decree must meanwhile be obeyed (Canon 1428). 


IMPOSITION OF PENSIONS ON BENEFICES 


1443. Local Ordinaries cannot impose on any kind of bene- 
fices perpetual pensions, nor temporary pensions that last for 
the lifetime of the pensionary ; but for a just cause, to be stated 
in the very act of conferring the benefice, they may when con- 
ferring a benefice impose temporary pensions that last for the 
life of the person on whom the benefice is conferred ; the pension 
must not be so high as to deprive the possessor of the benefice 
of proper maintenance. 

On parochial benefices the local Ordinaries may impose pen- 
sions only in favor of the pastor or parochial vicar of that same 
parish when they go out of office; this pension, however, shall 
not exceed one-third of the revenue of the parish, after expendi- 
tures and uncertain revenue have been deducted. 

Pensions imposed on benefices, either by the Roman Pontiff 
or by other grantors of benefices, cease with the death of the 
pensionary, who cannot transfer his pension to another unless 
this faculty has been expressly conceded to him (Canon 1429). 





CANONS 1428-1431 147 


Pope Benedict XIV passed very severe laws against those 
clerics who sold their right of pension to others and against 
those who resigned their benefice in favor of another on condi- 
tion of receiving a pension out of the benefice they were re- 
signing.© The Committee for the Authentic interpretation of 
the Code ruled that the bishop may allow a pastor to resien 
his parish on the condition of receiving a pension from that 
parish for the rest of his life, provided the law of Canon 1429 
is observed in the point that the pension may not exceed one- 


third of the net revenue of the parish.’ 
7May 20, 1923 (Acta Ap. Sedis, XVI, 116). 


POWER OF THE BISHOP IN REFERENCE TO CONVERSION OF 
BENEFICES 


1444. Benefices to which the care of souls is attached cannot 
be turned by the bishop into non-curate benefices, nor can he 
convert religious benefices into secular, nor secular into religious 
benefices. Simple benefices, on the contrary, may be converted 
by the local Ordinaries into curate benefices, provided there are 
no contrary explicit conditions laid down by the founder of the 
benefice (Canon 1430). 


CHAPTER IIT 


OF THE CONFERRING OF BENEFICES 


1445. The Roman Pontiff has the right to confer benefices 
in the entire Church, and to reserve to himself the right to 
confer them (Canon 1431). The Cardinals in the churches of 
their title, and local Ordinaries within the territory of their 
diocese, have by presumption of law the right to confer vacant 
benefices. (If, therefore, anyone claims that their conferring 
is reserved, or that someone else has a right interfering with 
the free right of Cardinals and local Ordinaries, he must prove 
that there exists a law or a special concession which gives him 
a right to interfere.) The vicar-general cannot without a special 
mandate from his Ordinary confer benefices. The vicar-capitular 


6 Const. ‘‘Universalis,’? August 29, 1741, and Const. ‘‘In sublimi,’’ 
August 29, 1741; Gasparri, ‘‘Fontes Cod. Jur. Can.,’’ I, 691-695. 


148 A PRACTICAL COMMENTARY 


(or any other administrator of a vacant diocese) can confer 
parishes under the conditions mentioned in Canon 455, § 2, n. 3; 
he cannot confer other permanent benefices over which the bishop 
has the right of free appointment. If the Ordinary has not 
conferred the benefice within six months after he had certain 
knowledge of the vacancy, the conferring of the benefice de- 
volves on the Apostolic See, with the exception of parishes 
where, for reason of peculiar circumstances of places and per- 
sons, the Ordinary judges it advisable to delay the definite 
appointment of a pastor, as Canon 458 points out (Canon 1432). 

Coadjutors in benefices, with or without the right of future 
succession, can be appointed exclusively by the Holy See, except 
in the cases mentioned in Canons 475 and 476 (Canon 1433). 
These Canons not only allow, but command the bishop to appoint 
other clergy to assist a pastor who cannot take proper care of 
his parish either because of sickness or other disabilities, or 
because of a large or scattered Catholic population. 


BENEFICES RESERVED TO THE Hoty SEE 


1446. Benefices which are reserved to the Holy See cannot 
be validly conferred by inferior authorities (Canon 1434). 

Besides all consistorial benefices and all dignities in cathedral 
and collegiate churches, as was specified in Canon 396, the 
following benefices alone are reserved to the Holy See, even 
though it be vacant: 

(1) All benefices, curate and non-curate, which become va- 
cant through the death, promotion, resignation, or transfer of 
Cardinals, Legates of the Roman Pontiff, major officials of the 
Sacred Congregations, Tribunals and Offices of the Roman Curia, 
and men belonging to the Papal Household (Familiares Summi 
Pontificis), though only as honorary members, at the time of 
the vacancy of their benefice; 

(2) All benefices outside the Roman Curia ie become 
vacant by the death of the holder of the benefice in the City 
of Rome; 

(3) All benefices which have been conferred invalidly, when 
the conferring was vitiated by simony; 

(4) Finally, all benefices on which the Roman Pontiff has 
laid hands either in person or through a delegate in one of the 





CANONS 1482-1440 149 


following ways: If he has declared the election to a benefice 
null and void, or has forbidden the electors to proceed with 
the election; if he has accepted the resignation of a benefice; 
if he has promoted or transferred the beneficiary, or has de- 
prived him of the benefice; if he gave the benefice to a man as 
a commenda. : 

Benefices conferred temporarily, and benefices subject to 
laical or mixed patronage, are never reserved to the Holy See 
unless this is explicitly stated. With reference to the benefices 


founded at Rome, the peculiar laws concerning their conferring 
shall be observed (Canon 1435). 


RuLES REGULATING VALID CONFERRING OF BENEFICES 


1447. An ecclesiastical benefice cannot validly be conferred 
on a cleric who is unwilling to and who does not explicitly accept 
the conferring of it (Canon 1486). Nobody may confer a bene- 
fice on himself (Canon 1487). All secular benefices must be 
conferred for the life of the beneficiary, unless the contrary is 
stated either in the charter of the foundation, or established 
by immemorial custom, or by particular indult (Canon 1438). 

1448. No cleric is capable of accepting and retaining in title 
or perpetual commenda several benefices which are incompatible 
in the manner defined in Canon 156. However, not only are 
two benefices incompatible when all their obligations cannot be 
simultaneously satisfied by the same beneficiary in person, but 
also when either of the two benefices suffices for the decent 
maintenance of the .beneficiary (Canon 1439). 

1449. Heclesiastical benefices must be conferred without 
diminution, except as prescribed by Canon 1429 (Canon 1440). 
The same law is found in the Decretals. The man who receives 
a benefice is to get it without any curtailment of the benefits 
attached to it. There are two ways of diminishing the value 
of a benefice—either by taking part of the income away from 
the beneficiary or by adding to the duties of the benefice without 
a proportionate increase of the benefits. Canon 1429 gives the 
local Ordinary a limited right of imposing pensions on benefices 
by which the above-stated principle is to some extent modified, 
for, when a pension is imposed, the benefice is actually rendered 
less valuable to the man who obtains the benefice. 


150 A PRACTICAL COMMENTARY 


Deductions from the revenue of benefices, compensations and 
payments to be made by a cleric to the one who confers the 
benefice, or to the patron, or to others at the moment when the 
benefice is conferred on him, are condemned as simoniacal 
(Canon 1441). 

1450. Secular benefices are to be conferred on secular clerics 
exclusively; religious benefices on members of that religious 
organization to which the benefices belong (Canon 1442). 


INSTALLATION IN BENEFICES 


1451. Nobody shall on his own authority take possession of 
a benefice conferred on him, nor shall he be installed without 
making the profession of faith, if the benefice be one for which 
the profession of faith is prescribed. In non-consistorial bene- 
fices the putting of the beneficiary in possession of the benefice 
(also called the institutio corporalis) rests with the local Ordi- 
nary, who can delegate another ecclesiastic to install the bene- 
ficiary (Canon 1443). 

The installation by which the beneficiary takes possession of 
his benefice is to be made in the manner specified by particular 
law or by legitimate custom, unless the Ordinary for a just 
cause explicitly and in writing dispenses with this method or 
rite: in such a case the dispensation takes the place of the 
formal taking of possession. The local Ordinary shall specify 
the time within which the beneficiary must take possession ; if 
the beneficiary fails to take possession within the specified time, 
the Ordinary may, in accordance with Canon 188, declare the 
benefice vacant, unless a just impediment prevented the bene- 
ficiary from taking possession (Canon 1444). Possession of a 
benefice may also be taken by a proxy appointed by special 
mandate (Canon 1445). 


CONFLICTING CLAIMS TO A BENEFICE 


1452. If a cleric who actually holds a benefice proves that 
he has been in undisputed and bona fide possession of a benefice 
for a space of fully three years of time, though perhaps his 
title to the benefice was invalid, he obtains the benefice by legiti- 
mate prescription, provided simony was not committed in secur- 
ing possession of the benefice (Canon 1446). 


CANONS 1441-1448 151 


A cleric who demands a benefice which has been in the undis- 
puted possession of another, and which is for a certain reason 
claimed to be vacant, must in his written petition state the name 
of the possessor, the time of possession, and the special reason 
which proves that the possessor has no right to that benefice. 
The benefice, however, cannot be conferred on the petitioner 
until the case has been first decided in a regular trial held 
according to the rules of law (Canon 1447). 


CHAPTER IV 


OF THE RIGHT OF PATRONAGE 


1453. The right of patronage comprehends the sum total of 
the privileges which, together with certain burdens, are conceded 
by the Church to Catholic founders of a church, chapel, or 
benefice, or also to those who have acquired the right of patronage 
from the founders (Canon 1448). 

The Church wanted to encourage people of means to devote 
a portion of their wealth to the service of God—and thus indi- 
rectly relieve the poor people from the burden of building and 
endowing churches and other places of divine worship—by giv- 
ing them certain rights over the church or benefice they had 
founded or endowed. Frequently the rights granted to founders 
were not used by them or their successors to the best interests 
of the Church, and in many instances they insisted absolutely 
on their rights but neglected their obligations. As these rights 
interfered with the free management of ecclesiastical affairs by 
the divinely appointed superiors of the Church, and there was 
a danger that the founders would antagonize rather than act in 
harmony with the ecclesiastical superiors, the Code in Canon 
1450 abolishes henceforth the right of patronage, although it 
respects such right wherever acquired before the promulgation 
of the Code. 

1454. In the United States the Second Plenary Council 
of Baltimore, confirming former decrees of the Provincial Coun- 
cils of Baltimore, does not admit the existence of the right of 
patronage. Wernz remarks that, in missionary countries where 


8 Acta et Decreta C. Balt II, n. 184. 


152 A PRACTICAL COMMENTARY 


there are no benefices in the strict sense of the term, and where 
the common law of the Church is not in force, the right of 
patronage over ecclesiastical offices is ordinarily not admitted.® 
For a while, mainly in the first half of the nineteenth century, 
there was a tendency apparent in many parts of the United 
States for lay trustees to claim the right of nominating the 
pastors of their parishes (besides other rights), because as trus- 
tees they were the representatives of the people who had built 
the church and who maintained it by their united offerings. Many 
years before, it had been ruled by the Church that no right of 
patronage is acquired by the congregation, or its lay representa- 
tives, if a church is built, endowed, maintained, ete., by volun- 
tary offerings of the faithful.?° 


Various KINDS oF PATRONAGES 


1455. The right of patronage is: 

(1) real or personal, according as it adheres either to some 
object (res), or is vested directly in some person; 

(2) ecclesiastical, laical, or mixed, according as the title by 
which one has the right of patronage is ecclesiastical, or laical, 
or mixed; 

(3) hereditary, family, tribal (gentilitium), or mized, ac- 
cording as it passes to the heirs, or to those of the family, or 
of the tribe, or to those who at the same time are heirs and 
members of the family or clan of the founder (Canon 1449). 

If the title by which one acquires the right of patronage is 
ecclesiastical (e. g., if this right is attached to a certain ecclesi- 
astical office, and through the office comes to the person), it is 
an ecclesiastical benefice. A laical benefice is based on a laical 
title (e.g., the foundation of a benefice by laical goods, acquisi- 
tion of patronage through inheritance, ete.). A mixed patronage 
can be based, for instance, on the foundation of a benefice with 
both ecclesiastical and laical funds. If a patronage can be 
acquired by the heirs (no matter who is appointed by last will 
or succeeds by law), it is called an hereditary patronage. If 
the charter of the foundation restricts the right of suecession 
to the patronage to the family of the founder, it is called a jus 


9Jus Decretalium, II (3rd ed.), n. 411. 
10 Sacred Cong. of the Council, Nov. 19, 1729; Pallotini, XI, 114. 





CANONS 1449-1451 153 


patronatus familiare; if it can pass to the remoter ancestors or 
descendants, it is a jus patronatus gentihtium; if one has to 
be both an heir and a member of the family or related to the 
founder, it is jus patronatus miztum. The category into which 
the right of patronage falls, depends on the so-called leges fun- 
dationis—a kind of charter drawn up by the founder with the 
consent of the bishop. 


RESTRICTION OF THE RIGHT OF PATRONAGE 


1456. No right of patronage can in future be validly consti- 
tuted under any title. The local Ordinary can: (1) grant 
spiritual suffrages, proportioned to the liberality shown, for a 
time or even perpetually, to the faithful who build a church 
either entirely or partly, or found benefices; (2) accept the 
foundation of a benefice under the condition that the benefice 
be for the first time conferred on the cleric who is the founder 
of the benefice, or another cleric designated by the founder 
(Canon 1450). 


RULES CONCERNING RIGHTS OF PATRONAGE ACQUIRED BEFORE 
THE PROMULGATION OF THE CODE 


1457. Local Ordinaries shall endeavor to persuade patrons 
to accept, instead of the right of patronage which they enjoy, 
spiritual suffrages, even perpetual ones, for themselves and the 
members of their family. If they are not willing to sacrifice 
the right of patronage, the Ordinary should try to get them to 
renounce at least the right of presentation of a cleric for the 
benefice. If the patrons do not agree to that, their right of 
patronage shall be governed by the following Canons (Canon 
1451). 

The Committee for the Authentic Interpretation of the Code 
has declared !t that this Canon means to oblige the bishop to 
make an effort to induce the patrons to renounce their rights, 
although he cannot force or command them to do so. 


11 November 12, 1922 (Acta Ap. Sedis, XIV, 663). 


154 A PRACTICAL COMMENTARY 


RigHtTs or Parrons DEFINED AND LIMITED 


1458. Elections and presentations by the faithful in general 
to parochial and other benefices, wherever they may exist, can 
be tolerated only if the people choose a cleric from among three 
proposed by the local Ordinary (Canon 1452). 

The personal right of patronage cannot validly be trans- 
ferred to infidels, public apostates, heretics, schismatics, per- 
sons enrolled in secret societies condemned by the Church, or to 
any person excommunicated by a declaratory or condemnatory 
sentence. The written consent of the Ordinary is required to 
transmit validly the personal right of patronage to others. 
The conditions of the charter of a foundation and the rule of 
Canon 1470 on the extinction of the right of patronage, must 
be adhered to. If there is question of the real right of patron- 
age, and the property to which the right is attached passes 
into the hands of the persons mentioned in the first part of 
this Canon, the right of patronage remains suspended (Canon 
1453). No right of patronage is admitted, unless it is proved 
by authentic document or other legitimate proofs (Canon 1454). 

1459. The privileges of patrons are as follows: 

(1) the right to present a cleric to the vacant church or 
vacant benefice; 

(2) if a patron without his fault is reduced to great pov- 
erty, he is in equity entitled to receive Sustenanee from the 
church or benefice, provided there are sufficient revenues to 
fulfill the obligations of the church or benefice and to give 
proper support to the holder of the benefice. The patron is 
entitled to maintenance, though he had renounced his right of 
patronage in favor of the Church, and though a pension was 
reserved to the patron at the time of the foundation of the 
benefice, if such pension does not suffice to relieve his poverty ; 

(3) if the legitimate customs sanction it, the right to have 
in the church of their patronage the coat of armg of their 
family or ancestry, precedence before all other lay persons in 
processions and similar functions, and a more prominent seat 
in church but outside the sanctuary and without a canopy 
(Canon 1455), 

Wives exercise the right of patronage personally; and 
minors through their parents or guardians, but, if the parents 


CANONS 1452-1459 155 


or guardians are non-Catholies, the right of patronage remains 
suspended in the meantime (Canon 1456). 


RicuHt OF PRESENTATION DEFINED 


1460. Unless the laws of the foundation or legitimate custom 
prescribe a shorter time, the right of presenting a eleric to a 
benefice must be exercised within four months from the time 
that the patron is notified of the vacancy by the authority who 
has the right to institute the cleric in the benefice. This rule 
applies to all rights of patronage, whether laical, ecclesiastical, 
or mixed. The patron must present one of the men who has 
successfully passed the concursus or the examinations, if it 1s 
a benefice which must be conferred by concursus (Canon 1457). 

If the presentation has not been made within the prescribed 
time, the church or benefice may in that instance be conferred 
freely by the ecclesiastical authority. If a controversy arises, 
either about the right of presentation between the Ordinary and 
the patron or between several patrons, or about the right of 
preference between several men presented, and the controversy 
cannot be settled within the time prescribed for the presenta- 
tion, the conferring of the benefice shall be suspended until the 
controversy is settled. Meanwhile, the Ordinary shall, if neces- 
sary, appoint an administrator of the vacant ehurch or benefice 
(Canon 1458). 


SEVERAL PATRONS OF ONE BENEFICE OR CHURCH 


1461. If there are several independent patrons, they may 
for themselves and their successors make an agreement to exer- 
cise the right of presentation in rotation. This agreement is 
not valid, unless the written consent of the Ordinary be added; 
but, once this consent has been given, it cannot validly be re- 
voked either by the same Ordinary or his successors against the 
will of the patrons (Canon 1459). 

1462. If the right of patronage is exercised by a body (for 
instance, the Cathedral Chapter), that cleric is considered pre- 
sented who has obtained the plurality of votes, as specified by 
Canon 101 in reference to elections. If after two ballots nobody 
has a plurality of votes, a third ballot is taken; if several candi- 


156 A PRACTICAL COMMENTARY 


dates are tied with the largest number of votes in this third 
ballot, so that nobody has a plurality of votes, all who have an 
equal number are to be considered presented. If several indi- 
vidual persons have the right of patronage, and they have not 
agreed among themselves to present candidates in rotation, that 
one is considered presented who has at least a relative plurality 
of votes; if several men are tied with the largest number of 
votes, all these are considered presented. The patron who has 
the right of patronage from several titles has as many votes in 
the presentation as he has titles. Every patron may, before 
the presentation is accepted (by the one presented), present not 
only one but several men, both simultaneously and successively, 
provided he does so within the time limited for presentation 
and does not exclude those whom he first presented (Canon 
1460). 

1463. Nobody can present himseif, nor combine with other 
patrons to complete the number of votes necessary for his 
presentation (Canon 1461). The law does not forbid the 
presentation of one of the patrons, but the one who is to be 
presented cannot vote for his own presentation without violat- 
ing Canon 1461, which forbids a patron to present himself. 

1464. If the church or benefice is to be filled by concursus 
(competitive examinations), neither a clerical nor a lay patron 
can present any other cleric than one of those who has legiti- 
mately been approved by concursus (Canon 1462). 

1465. The cleric presented must be qualified—that is to say, 
on the day of presentation, or at least on the day on which he 
accepts the presentation, he must have all the qualifications 
which are demanded either by the common law, or the particu- 
lar law, or the charter of the foundation of the benefice in 
question (Canon 1463). 


ADMISSION OF PRESENTATION BY THE LOCAL ORDINARY 


1466. The presentation must be made to the local Ordinar 4 
who has the right to judge whether the person presented is 
qualified. The Ordinary must, according to Canon 149, make 
careful investigation and get the necessary information, even 
secretly if necessary, to form his judgment about the qualifica- 
tions of the man presented. The Ordinary ig not obliged to’ 











CANONS 1460-1468 157 


make known to the patron the reasons why he does not admit 
the person presented (Canon 1464). 

If the person presented was rejected by the Ordinary as not 
qualified, the patron may, within the time specified by Canon 
1457, present another person; if the time has elapsed through 
the neglect of the patron, he loses his right for that instance. 
If, after the rejection of the first man presented, the patron 
presents another and he also is rejected, the church or benefice 
may for that instance be filled by the free choice of the Ordi- 
nary. However, if the patron or the person presented appeals 
to the Holy See within ten days after the notification of the 
Ordinary that the candidate has been rejected, the conferring 
of the benefice is suspended until the end of the controversy, 
and in the meantime the Ordinary shall, if necessary, appoint 
an administrator to the vacant church or benefice. If the pres- 
entation is vitiated by simony, it is automatically void by law, 
and so is the appointment to the church or benefice, if it per- 
haps took place (Canon 1465). 


ACCEPTANCE OF PRESENTATION BY THE CANDIDATE AND 
CANONICAL INSTITUTION 


1467. If the cleric has been legitimately presented and found 
qualified and accepts the presentation, he has the right to 
canonical institution. The right to grant canonical institution 
or conferring of the benefice is vested in the local Ordinary; 
the vicar-general may give it by special mandate only. If 
several qualified men were presented, the Ordinary chooses the 
one whom he believes before God to be better qualified (Canon 
1466). 

The canonical appointment. of a man whose presentation 
to any benefice has been accepted, though no care of souls is 
attached to it, must be granted within two months from the 
date of the presentation, if no impediment justifies a longer 
delay (Canon 1467). If the man presented renounces his claim 
before the canonical appointment, or if he dies, the patron has 
again the right to present another (Canon 1468). 


158 A PRACTICAL COMMENTARY 


OBLIGATIONS OF PATRONS 


1468. The obligations or duties of patrons are as follows: 

(1) to advise the local Ordinary when they see that the 
goods of the church or benefice are squandered, but they may 
not interfere in the administration of these goods; 

(2) to rebuild the church if it collapses, or to make the 
repairs which the Ordinary judges necessary, if they hold the 
right of patronage for reason of having built the church, unless 
the burden of rebuilding or repairing the church rests on others, 
according to the rules of Canon 1186; 

(3) if the patron derives the one of patronage from the 
endowment of the church benefice, to supply the revenue, in case 
the income of the church or benefice fails to such an extent that 
divine worship cannot be carried on in that church with proper 
respect, or the benefice cannot be conferred for lack of income 
assuring the maintenance of the beneficiary. 

If the church has collapsed or stands in need of necessary 
repairs, or if the revenue of the benefice fails, as stated in this 
Canon, the right of patronage remains suspended for the time. 
If the patron, within the time to be specified by the Ordinary 
under penalty of forfeiting forever the right of patronage, has 
rebuilt or repaired the church, or increased the revenue, the 
patronage revives; otherwise it ceases automatically without 
any further declaration (Canon 1469). 


CESSATION OF THE RIGHT OF PATRONAGE 


1469. Besides the case mentioned in the last paragraph of 
the preceding Canon, the right of patronage ceases: 

(1) if the patron has renounced his right. The renuncia- 
tion may be done by renouncing the entire right or part of the 
rights; his renunciation, however, can never affect the rights of 
other patrons if there are several in the same church or bene- 
fice ; 

(2) if the Holy See has recalled the right of patronage, or 
has permanently suppressed either the church itself or the 
benefice ; 

(3) if a legitimate prescription against the right of patron- 
age has been established ; 


CANONS 1469-1471 159 


(4) if the property or object to which the right of patronage 
adheres has perished, or if the family, relatives, or line, to 
which the patronage is reserved by the charter of the founda- 
tion has become extinct. In the latter case, the patronage does not 
become an hereditary patronage, nor can the Ordinary validly 
permit the donation of the right of patronage to another ; 

(5) if, with the consent of the patron, the church or bene- 
fice is united to another of free conferment, or if, with the 
patron’s consent, the church passes into the hands of a cor- 
porate body having the right of election, or into the hands of 
regulars ; 

(6) if the patron has attempted to transfer the right of 
patronage to another by a simoniacal agreement ; if the patron 
falls into apostasy, heresy, or schism; if he bas unjustly 
usurped, and retains, the goods and rights of the church or 
benefice; if he has, either in person or through another, killed 
or mutilated the rector or another clerie assigned to the service 
of the church of his patronage or of the benefice. Through the 
commission of these crimes the guilty patron alone loses the 
rights of patronage, with the exception of the last crime (kill- 
ing or mutilating), by which his heirs also forfeit the right. 
The right is lost by these crimes after a declaratory sentence. 
Patrons who have incurred a censure or infamy of law, are, 
after a condemnatory or declaratory sentence, suspended from 
the exercise of the right of patronage for as long a time as the 
censure or infamy lasts (Canon 1470). 


SpECIAL CONCESSION BY THE Hony SEE OF RIGHT OF PRESENTA- 
TION Does Not CONSTITUTE PATRONAGE 


1470. If the Holy See concedes to somebody, either by Con- 
cordat or in any other way, the right to present a eleric for a 
vacant church or benefice, the right of patronage does not arise 
from this concession, and the privilege of presentation must be 
strictly interpreted according to the wording of the indult 
(Canon 1471). 


160 A PRACTICAL COMMENTARY 


CHAPTER V 


OF THE RIGHTS AND DUTIES OF BENEFICIARIES 


1471. Every beneficiary enjoys all the temporal and spir- 
itual rights attached to his benefice from the moment of taking 
legitimate possession of his benefice (Canon 1472). Though 
the beneficiary has other goods besides those of the benefice, he 
may freely make use of the revenues of the benefice for his 
proper maintenance. He is, however, bound by obligation to 
spend the superfluous income for the benefit of the poor or 
charitable institutions without prejudice to the right ceded to 
Cardinals by Canon 239, § 1, n. 19 (Canon 1473). - If the recep- 
tion of a certain order is required for the obtaining of a bene- 
fice, the beneficiary must have received that order before the 
benefice is conferred on him (Canon 1474). 


Duties of BENEFICIARIES 


1472. The beneficiary is obliged to fulfill faithfully the spe- 
cial duties attached to his benefice, and he has besides the 
obligation to recite daily the Canonical Hours. If, without 
legitimate excuse, he fails to satisfy the obligation of reciting 
the Canonical Hours, he forfeits a portion of the income in 
proportion to the extent of his neglect, and he is bound to give 
that portion of the income to the church fund, or to the dio- 
cesan seminary, or to the poor (Canon 1475). Authors observe 
in reference to this penalty that, if the income of the benefice 
is so small that it is a meager salary even for the other duties 
attached to the benefice (besides the obligation of the Divine 
Office), the obligation to sacrifice a portion of the income for 
the neglect of the Divine Office is not a grave obligation. 

1473. The beneficiary must administer the goods and prop- 
erty of his benefice according to the rules of Canon Law, and, 
if through neglect or other fault he injures the benefice, he is 
bound to repair the damage, and is to be forced by the local 
Ordinary to do so; if he is a pastor, he may be removed from 
the parish in the manner prescribed by Canons 2147-2161 
(Canon 1476). 


CANONS 1472-1482 161 


The expenses connected ordinarily with the administration 
of the goods of the benefice and the collecting of the revenue 
must be borne by the beneficiary. Expenditures for extraor- 
dinary repairs of the residence belonging to the benefice must 
be borne by those who have the obligation to repair the church 
of the benefice, unless the charter of the foundation or legiti- 
mate agreements or customs rule otherwise. Minor repairs 
incumbent on the beneficiary must be made as soon as possible 
to avert the necessity of greater repairs (Canon 1477). The 
local Ordinary is under obligation to ensure, even through the 
viears-foranes (deans), that the goods of benefices are con- 
served and properly administered (Canon 1478). 

1474. In renting the goods of the benefice, it is forbidden, 
without the permission of the local Ordinary, to collect the 
rent in advance for more than six months. In extraordinary 
eases the Ordinary shall make prudent regulations so that such 
renting shall not impair the interests of a church or institution 
or of the successors to the benefice (Canon 1479). 

1475. Unless legitimate custom or special and properly ap- 
proved laws have established another mode of just settlement, 
the annual income of the benefice shall be divided between a 
new beneficiary and his predecessor or (in case of death) his 
heirs, in proportion to the time that each has held the benefice. 
In this division of the revenue, all the receipts and expenditures 
of the year shall be taken into consideration (Canon 1480). 

1476. The income accruing during the vacancy of a benefice, 
after the deduction of the expenditures of any kind and the 
payment of the salary of the administrator mentioned in Canon 
472, n. 1, is to be divided as follows: one-half goes to the 
endowment of the benefice or the common fund of beneficiaries 
of the church, the other half goes to the sacristy, or church 
fund. If there exists a legitimate custom by which the entire 
income accrued during the vacancy goes to the common good 
of the diocese, that custom is to be followed (Canon 1481). 

1477. With reference to the so-called annates (media annata), 
these shall be retained in places wherever existing, and the 
statutes and laudable customs in force in the various places 
concerning these annates shall be observed (Canon 1482). The 
media annata was a tax levied upon the first year’s income of 
a non-consistorial benefice and paid to the Roman Pontiff by 


162 A PRACTICAL COMMENTARY 


the beneficiary: according to Vermeersch-Creusen this tax 
amounted to one-half the income.?2 

1478. The goods of the mensa episcopalis must be carefully 
administered by the bishop. The episcopal residence is to be 
kept in good condition, and must be repaired with the funds 
of the mensa episcopalis, whenever this burden does not by 
special law rest on others. Every bishop must see that an exact 
inventory is prepared of the furniture and movable property 
pertaining to the episcopal residence and belonging to the mensa 
eprscopalis, in order that such property may be transmitted 
safely and in its entirety to his successor in the bishopric 
(Canon 1483). The mensa episcopalis is considered a legal 
person in Canon Law. In the United States the bishopric as 
such is usually not endowed; wherefore, the bishops get their 
salary through the cathedraticum and other assessments on the 
parishes for diocesan expenditures. 


CHAPTER VI 


OF RENUNCIATION AND EXCHANGE OF BENEFICES 


1479. The Ordinary shall not accept the renunciation of a 
benefice by a cleric in major orders, unless it is certain that he has 
from other sources the necessary means for respectable mainte- 
nance, or unless he has made his religious profession as pre- 
scribed in Canon 584 (Canon 1484). The renunciation of the 
benefice which was the cleric’s title of ordination is null and 
void, unless explicit mention is made that the cleric was or- 
dained under the title of that benefice, and another legitimate 
title is substituted with the consent of the Ordinary (Canon 
1485). The titles of ordination are defined by Canon 979 of 
the Code. The title of a benefice is the ordinary title for 
secular clerics; patrimony and pension are secondary titles. 
The extraordinary title of ‘‘service of the diocese’? is admitted, 
when none of the three other titles is available (cfr. Canon 
981). 

1480. The renunciation of benefices in favor of others, or 
under some condition which affects the conferring of the bene- 


L2/* © Epitome, ’’ IT, n. 806. Cfr. Ferraris, me Bibliotheca, ’ , J; 244, s. v. 
Annate. 


CANONS 1483-1488 163 


fice or the use of its income, cannot be accepted by the Ordi- 
nary except in cases where the benefice is in litigation and the 
renunciation is made by one of the litigants in favor of the 
other (Canon 1486). The Committee for the Authentic Inter- 
pretation of the Code decided that the local Ordinary can 
accept the renunciation of a parish under the condition that 
the resigning pastor receive a pension from the parish for the 
rest of his life. The pension may not exceed one-third of the 
net revenue of the parish, as stated in Canon 1429.1° 


EXCHANGE OF BENEFICES 


1481. The exchange of two benefices may be validly made 
only when the needs or interest of the Church, or another just 
cause, requires it: the exchange must never revert to the detri- 
ment of others, and the consent of the patron (if there be any) 
and also of the local Ordinary is required. The vicar-capitular 
cannot give the consent, and the vicar-general can give it by 
special mandate only. The precepts of Canon 186 regarding the 
formalities of resignation must be observed in every instance. 
The Ordinary shall within one month either give or refuse his 
consent; the exchange is valid from the moment when the con- 
sent of the Ordinary is given. The exchange of benefices 
cannot be permitted by the Ordinary if both or either of the 
two benefices is reserved to the Holy See (Canon 1487). 

If the benefices to be exchanged are unequal, no compensa- 
tion may be made by the reservation of some of the revenues 
of the benefice, or by payments of money, or payment of any- 
thing that has money value. The exchange cannot be made 
between more than two beneficiaries (Canon 1488). 


TITLE XXVI 


OF OTHER NON-COLLEGIATE INSTITUTES OF THE 
CHURCH 


1482. Hospitals, orphanages, and other like institutions des- 
tined for works of religion or for spiritual or temporal charity, 
may be erected by the local Ordinaries, and by their decree made 


13 May 20, 1923 (Acta Ap. Sedis, XVI, 116). 


164 A PRACTICAL COMMENTARY 


legal persons in the Church. The local Ordinary shall not ap- 
prove these institutions unless the purpose of their foundation 
is really useful, and unless after mature consideration he believes 
the endowment sufficient, or there is a reasonable certainty that 
sufficient means will be obtainable to realize the purpose of the 
institution. The administration of the goods of these institu- 
tions is in the hands of the rector of each institution, according 
to the rules laid down in the charter of the foundation. The 
rector is bound by the same obligations and enjoys the same 
rights as the administrators of other ecclesiastical goods (Canon 
1489). 

1483. In the charter of the foundation the founder should 
accurately define the entire constitution of the institute, its 
purpose, the endowment, administration and government, the 
use of the revenue, and the successor to the goods in ease of 
the extinction of the institute. This charter should be made in 
duplicate, and one copy is to be kept in the archives of the 
institute, and the other in the diocesan archives (Canon 1490). 

1484. The local Ordinary has the right and duty to visit all 
institutions of this kind, even those which are erected as a legal 
person and however exempt. Even though the pious founda- 
tion has not been created a legal person, and has been entrusted 
to a religious community, the foundation is entirely subject to 
the jurisdiction of the local Ordinary if the religious house 
belongs to a diocesan organization. If the religious in charge 
of the pious foundation belong to an organization of Papal 
Law, the foundation is subject to the supervision of the local 
Ordinary in all matters pertaining to the teaching of religion, 
moral conduct, exercises of piety, and the administration of 
the sacraments (Canon 1491). 

1485. Even though a pious institute is exempted from the 
jurisdiction and visitation of the local Ordinary by the terms 
of the foundation, or by prescription, or by Apostolic privilege, 
the local Ordinary has nevertheless the right to demand an 
account of its finances, every contrary custom being con- 
demned. If the founder of a religious or charitable institute 
desires that the administrators shall not be obliged to give an 
account to the local Ordinary, the foundation shall not be 
accepted (Canon 1492). 

It is a principle firmly established in Canon Law that the 


CANONS 1489-1496 165 


local Ordinary is the supreme supervisor of all ecclesiastical 
goods and property in his territory. The law makes special 
provision for the management of the finances of religious con- 
eregations, in so far as their own affairs are concerned. If, 
however, they are trustees or administrators of ecclesiastical 
goods that are not strictly speaking goods of their own com- 
munity but ecclesiastical goods devoted to religious and chari- 
table purposes, they are bound to give an account of the man- 
agement of the finances to the local Ordinary. The Code is 
very explicit on this point, and forbids the Ordinary to estab- 
lish a pious foundation for religious or charitable purposes as 
an ecclesiastical person or entity, if the founder wants it in its 
financial administration to be independent of the authority of 
the local Ordinary. 

1486. The local Ordinary shall see that the pious intentions 
of the faithful expressed in the foundation of religious or 
charitable institutes are fully complied with (Canon 1493). 
Without the permission of the Holy See, these institutes cannot 
be suppressed, united, or diverted to uses foreign to the inten- 
tions of the founders, unless the agreement or charter drawn 
up at the time of their foundation rules otherwise (Canon 
1494). 


PART SIX 


OF THE TEMPORAL GOODS OF THE CHURCH 


1487. The Catholic Church and the Apostolic See have an 
inherent right freely and independently of the civil power to 
acquire, keep, and administer temporal goods for the prosecu- 
tion of the proper purposes of the Church. Also individual 
churches, and other moral persons which have been created 
legal persons by the ecclesiastical authority, have the right to 
acquire, keep and administer temporal goods, according to the 
laws of the Sacred Canons (Canon 1495). The Church has, 
moreover, the right independently of the civil power to demand 
from the faithful the necessary means for conducting divine 
worship, for the decent maintenance of the clergy and other 
ministers, and for her other proper purposes (Canon 1496). 


166 A PRACTICAL COMMENTARY 


The right which the Church here claims follows as a logical 
sequence from the divine institution of the Church. If one 
admits that Christ established the Church as a society which 
was to continue His work in the spiritual government and guid- 
ance of mankind by organized effort, one must also admit that 
Christ gave that Church all the powers and rights incident to 
the work He committed to her. These fundamental questions 
are not dealt with at length in Canon Law, since they belong to 
other branches of theology. The reader may consult the standard 
works on the Jus Publicum Ecclesiasticum, which treat these 
points in detail.1 

1488. By the term ecclesiastical goods are understood all tem- 
poral goods, corporeal (movable and immovable) and incorporeal, 
real and personal, which belong either to the Universal Church, 
or to the Apostolic See, or to individual ecclesiastical legal per- 
sons. By sacred goods are meant those which have been dedi- 
cated to divine worship by consecration or blessing; by precious 
goods (pretiosa) those which have a notable value for artistic 
or historical reasons or because of the material of which they 
are composed (Canon 1497). 

In the succeeding Canons the term Church signifies not only 
the Universal Church or the Apostolic See, but also every legal 
person in the Church, unless the contrary is apparent from the 
context of the law, or the nature of the matter under discus- 
sion (Canon 1498). 


TITLE XXVII 


OF THE ACQUISITION OF ECCLESIASTICAL GOODS 


1489. The Church can acquire temporal goods by all just 
means which are sanctioned in the ease of others by the natural 
or the positive law. The ownership of the goods belongs, under 
the supreme authority of the Apostolic See, to that legal person 
which acquired these same goods legitimately (Canon 1499). 

The Church proceeds in the same manner as the State in the 


1 Cardinal Cavagnis, ‘‘Institutiones Juris Publici Eeclesiastici?? (Rome, 
1906). See also Cappello, ‘‘Summa Juris Publici Ecclesiastici?? (Rome, 
1923), wherein a list of the special works on this Subject is given; Ryan 
and Millar, ‘‘The State and the Church’’ (New York, 1924). 





CANONS 1497-1502 167 


matter of property. In civil law there are the individual citi- 
zens holding right and title to their own property, and there 
are corporations created by law to have and hold property. 
The Church is chiefly concerned with property rights of the 
legal ecclesiastical persons, for the property of individual per- 
sons (for instance, a priest or a bishop) is not ecclesiastical 
property, if they hold it in their own right. Though a priest 
may have no other property but the savings from his salary 
received as an assistant or a pastor, still he holds that in his 
own right, and it is not ecclesiastical property. 

1490. When the territory of a legal ecclesiastical person is 
divided so that either a part of it is united to another legal 
person, or a new and distinct legal person is created by the 
separated territory, the common goods which were destined for 
the benefit of the entire territory, and also the debts contracted 
for the whole territory, shall be divided in proper proportion 
and in all fairness by the competent ecclesiastical authority 
which orders the division. The intentions of founders and 
benefactors, acquired legal rights, and special laws governing 
legal persons must be respected (Canon 1500). 

1491. If a legal person ceases to exist, its goods shall belong to 
the immediately superior legal person, subject always to the 
will and intentions of the founders and benefactors, lawfully 
acquired rights, and the special laws which governed the extinct 
person (Canon 1501). 

1492. The payment of the decima and primitie shall be gov- 
erned by the special laws and laudable customs of each country 
(Canon 1502). The decime@ (tithes or tenth part) of the fruits 
of one’s property or income were demanded in ancient times 
by the law of the Church as an annual tax to the Church. Pope 
Gregory VII condemns in severe terms those who refused to 
pay the decima, saying that they should know that they are 
guilty of the crime of sacrilege and incur the danger of eternal 
damnation.2 The Council of Trent insists on the payment of 
these tithes.2 At present there is no general law demanding 
payment of tithes, but, if there is a special law or custom in 
some country requiring their payment, the Church insists on 
its observance. The primitiw (or first fruits of fields, vine- 


2 Decretum Gratian, ec. 1, C. XVI, qu. 7. 
3Sessio XXV, cap. 12, De Reform. 


168 A PRACTICAL COMMENTARY 


yaras, orchards, gardens, ete.) originally referred to the first 
crop that was obtained from new fields or gardens, the first 
offspring of animals, ete. Following the example of the Old 
Testament, the Christians in many places introduced the custom 
of offering the first fruits.4 

1493. Private individuals, both clerics and laymen, are for- 
bidden to collect alms for any charitable or ecclesiastical insti- 
tution or purpose without the written permission of the Apos- 
tolic See or their proper Ordinary and of the Ordinary of the 
place where the collection is to be made. The regulations of 
Canons 621-624 regarding the collection of alms by religious 
organizations are not affected by this Canon (Canon 1503). 


TAXATION PowrErR oF LOCAL ORDINARIES 


1494, All churches or benefices subject to the jurisdiction of 
the bishop, and all confraternities of lay persons, must pay 
annually to the bishop as a token of submission the cathedrati- 
cum or a moderate tax, the amount of which is to be determined 
in accordance with the regulations of Canon 1507, unless 
it has already been fixed by ancient custom (Canon 1504). 

The Sacred Congregation of the Council has declared that 
the cathedraticum must be the same for all churches, chapels, 
and benefices subject to the bishop; it is not to be figured in 
proportion to the revenue of a church, or the number of parish- 
ioners, ete. The Bishops of France had complained that they 
could not pay for the maintenance of the chancery office from 
the ordinary fees, and needed therefore some source of revenue 
to defray the expenditures. The Sacred Congregation states 
that this is not the purpose of the cathedraticum, and that they 
could assign part of the contributions of the Catholics of France 
(known as the denier du culte) to the chancery office. 

The Sacred Congregation of the Council has ruled that the 
cathedraticum is not due to the administrator or any other 
person who rules the diocese during the vacancy, for during the 
vacancy no cathedraticum is to be paid.® 

1495. If some special need of the diocese requires it, the 


4 Ferraris, ‘‘Bibliotheca,’’ VI, s. v. Primitic. 
5 March 13, 1920 (Acta Ap. Sedis, XII, 444). 
6 August 20, 1917 (Acta Ap. Sedis, IX, 497), 











CANONS 1503-1508 169 


bishop may impose an extraordinary small tax on all benefi- 
ciaries, both secular and religious, besides the seminary tax 
mentioned in Canons 1355-1356 and the pension on benefices 
spoken of in Canon 1429 (Canon 1505). Other taxes for the 
benefit of the diocese, or in favor of a patron, may be imposed 
by the bishop on churches, benefices, and other ecclesiastical 
institutions subject to him only at the time of foundation or 
consecration ; no tax may be imposed on Mass stipends, whether 
ordinary stipends or those of foundation Masses (Canon 1506). 

1496. Subject to the precepts of Canons 1056 and 1234, the 
determination of the fees to be paid throughout the whole 
ecclesiastical province for various acts of the so-called volun- 
tary jurisdiction [which means here the concession of dispensa- 
tions and other favors], for the execution of rescripts of the 
Holy See, or on the occasion of the administration of the 
Sacraments and sacramentals, is vested in the Provincial Coun- 
cil or a convention of the bishops of the province: however, 
such determination has no force until it has been first approved 
by the Holy See. The fees for judicial acts are to be determined 
according to the precept of Canon 1909 (Canon 1507). In 
matrimonial dispensations the local Ordinary cannot demand 
any more than a small offering to cover the expenditures of 
the chancery office (cfr. Canon 1056) ; the stipend for funeral 
services may be fixed by each local Ordinary (cfr. Canon 1234). 


ACQUISISTION OF ECCLESIASTICAL GOODS BY PRESCRIPTION 


1497. The method of acquiring goods and rights and freeing 
oneself from obligations by prescription, as found in the civil 
law of the individual countries, is adopted by the Church in 
connexion with ecclesiastical goods, except within the limitations 
prescribed by the following Canons (Canon 1508). 

1498. The following goods and rights are not subject to 
prescription : 

(1) those which are of divine law, whether natural or posi- 
tive ; 

(2) those which ean be obtained only by Apostolic privi- 
lege; 

(3) those spiritual rights which lay persons are incapable 
of acquiring, if there is question of prescription in favor of 
lay persons; 


170 A PRACTICAL COMMENTARY 


(4) the certain and undisputed boundary lines of ecclesi- 
astical provinces, dioceses, parishes, vicariates and prefectures 
Apostolic, abbacies and prelatures nullius : 

(5) stipends and obligations of Masses ; 

(6) ecclesiastical benefices without title ; 

_ (7) the right of visitation and obedience, if this would entail 
that the subjects cannot be visited by any prelate and are no 
longer subject to any prelate; 

(8) payment of the cathedraticum (Canon 1509). 

As neither the ecclesiastical nor the civil authority has 
power to change matters regulated by the divine law, no human 
authority can tolerate prescription which involves a violation 
of the divine law. Thus, for example, certain spiritual powers 
and rights are by the law of Christ attached to the office of 
the Supreme Pontiff and to that of the bishop, and in the ease 
of these no prescription avails. Those things which cannot 
validly be done except by Apostolic privilege (e.g., the admin- 
istration of Confirmation or the conferring of the tonsure and 
minor orders), cannot be obtained by prescription. Lay per- 
Sons cannot acquire those spiritual rights for the possession of 
which they are incapacitated either by divine or by ecclesiasti- 
cal law (e.g., laymen are incapable by divine law of holding 
ecclesiastical jurisdiction : by ecclesiastical law they are in- 
capacitated from acquiring the right of patronage, efr. Canon 
1450). The rule of the Code against the change of boundary 
lines between ecclesiastical provinces, dioceses, and parishes by 
prescription, is taken from the former law ;* if the boundary 
lines are uncertain or disputed, prescription is admitted. 

1499. Mass stipends and the obligation to apply Holy Mass 
for a certain intention are not subject to prescription. The 
offering made for the application of Mass belongs to the priest 
who said the Mass for the intention of the donor, and the 
Church does not admit prescription in violation of the right of 
the priest to the offering. On the other hand, the priest who 
is obliged to apply Mass for a certain intention because of a 
stipend accepted by him, or in virtue of a benefice which he 
holds and to which the obligation of applying a certain number 
of Masses for certain intentions is attached, cannot free him- 


7 Decretales Greg. IX, e. 9, De Prescriptionibus, lib. IT, tit. 26; and 
c. 4, De Parochis et alienis Parochianis, lib. ITI, tit. 29. 


CANON 1509 171 


self from the obligation by prescription. If the obligation to 
apply certain Masses rests with a body of men (e.g., the Ca- 
thedral Chapter), and the statutes of this body places the obli- 
gation on certain of its members, prescription may put the 
burden on other members, as was admitted by the Sacred 
Congregation of the Council. The Code is not opposed to this 
kind of a prescription, for in the case cited the prescription 
does not involve either the Mass stipends or the obligation of 
applying the Masses: the entire Chapter gets the benefit of 
the money or property, which was given to the Chapter with 
the obligation of saying some Masses for the donor; the ful- 
fillment of the obligations of the Chapter is apportioned merely 
by the statutes of the Chapter, and against these statutes pre- 
seription may be invoked. 

1500. According to Canon 147, ecclesiastical offices cannot be 
obtained without appointment by the competent ecclesiastical 
superior; the same rule applies to benefices, because a benefice 
consists of a sacred office with the right to receive the income 
from the goods with which the office is endowed (cfr. Canon 
1409). Without the title to a benefice, a cleric cannot obtain a 
benefice by prescription. The appointment to the benefice may 
be invalid, but there must be some title under which apparently 
the benefice was rightfully obtained. The titulus coloratus (the 
color or appearance of a true title, by which one holds a bene- 
fice) suffices, and, according to Canon 1446, if he has remained 
in undisputed possession for three years, provided no simony 
was committed in securing this possession, the cleric obtains the 
benefice by legitimate prescription. Good faith, however, 1s 
necessary, not only when he first took possession of the benefice, 
but also for the entire three years necessary to get valid title to 
the benefice by prescription (efr. Canon 1512). 

1501. The right of visitation and the right to command obedi- 
ence are proper to the ecclesiastical superior. The essential 
constitution of the Catholic Church declares that all members 
of the Church are subject to the Supreme Pontiff, and that, 
besides obedience to the Supreme Pontiff, the inhabitants of a 
diocese or the subjects of a religious organization owe obedi- 
ence also to the head of the diocese or the religious organization. 
Canon Law admits prescription in connexion with the rights of 


8 April 27, 1901 (Acta S, Sedis, XXXIV, 100). 


172 A PRACTICAL COMMENTARY 


inferior authorities, but no prescription is or can be admitted 
in the Church by which one can free oneself from the rights of 
every superior authority. The Church has admitted the exemp- 
tion of certain religious organizations from the authority of the 
local Ordinary by making the organizations directly subject to 
the Holy See, but even this exemption has been considerably 
reduced.°® 

1502. The cathedraticum is defined by the Code as a token 
or acknowledgment of the submission and obedience to the bishop 
of all legal ecclesiastical persons of the diocese (cfr. Canon 
1504), and no prescription excuses one from the duty to pay 
the cathedraticum. 

1503. Sacred things which may be possessed by private indi- 
viduals can be acquired by prescription by private persons, 
who however may not use them for profane purposes. If these 
things have lost their consecration or blessing, they may be 
acquired and used for profane—but not mean or unworthy— 
purposes. Sacred things which may not be possessed by pri- 
vate persons cannot be acquired by prescription by such per- 
Sons; one legal ecclesiastical person can acquire through pre- 
seription sacred things owned by another legal ecclesiastical 
person (Canon 1510). The legal ecclesiastical person holds a 
more favorable position in so far as private individuals cannot 
make use of the right of prescription in the ease of sacred things : 
owned by legal persons (church, charitable or religious insti- 
tutions), while the legal person is not prohibited from using 
the right of prescription against things held by private indi- 
viduals. 

1504. Only a prescription of one hundred years’ duration 
is valid in the case of immovable property, precious movable 
goods, and rights and personal and real claims of the Holy See. 
Goods, property, and rights of any other legal ecclesiastical 
person can be acquired by a prescription of thirty years (Canon 
1511). 

1505. No prescription is valid, unless it is based on ood 
faith, not only at the moment of entering into possession but 
during the whole time required for prescription (Canon 1512). 

The general principle of Canon 1508 that the Church adopts 
in its Code the civil law on prescription is modified in certain 


® Decretales Greg. IX, ce. 12 and 16, De Prescript., lib. IT, tit. 26, 





CANONS 1510-1512 173 


points by Canons 1509-1512. First, the Church excepts certain 
goods and rights from prescription (cfr. Canon 1509) ; it modi- 
fies the right of prescription in reference to sacred things (cfr. 
Canon 1510) ; furthermore, it makes certain persons privileged, 
namely, the Apostolic See and legal ecclesiastical persons (cfr. 
Canon 1511). The exception in favor of the Holy See is the 
same as it was in the law of the Decretals; the exception in 
favor of the other legal ecclesiastical persons extended to forty 
years in the former Canon Law, while the Code limits the 
period to thirty years.*° If, by special concession of the Holy 
See, some ecclesiastical legal person (e.g., certain religious 
Orders) have received the privilege from the Holy See that 
only a prescription of fifty, sixty, or more years applies in the 
ease of their goods and rights, that privilege still exists. 

A very important canonical rule of prescription is that 
which states that. good faith is essential, not only at the be- 
ginning, but during the entire period of prescription. In the 
civil law the question of good faith is not of much importance, 
and it cannot be, because good faith is mostly a matter of the 
internal forum. The Fourth Lateran Council was very empha- 
tic in demanding good faith in the beginning as well as during 
all the time requisite for prescription, and declared that no 
prescription, canonical or civil, was valid without good faith.™ 

In the civil law of the United States we have prescription 
chiefly in reference to rights over real estate, adverse possession 
of the real estate itself, and the statute of limitations which bars 
claims for payment of debts after a certain period. If one 
allows, even by mere inaction, another to use one’s real estate 
or exercise certain rights over it (e.g., the use of a path or 
driveway through the property) for the statutory limit of time 
(which varies in different states, but is usually twenty years), 
the latter has a vested right to use the property or exercise 
that right over it. The adverse possession of another’s land, 
if occupation of the land is taken openly and remains undis- 
turbed for the statutory period (usually twenty years or less), 
ripens into a title to the land. The statute of limitations has 
the effect that certain debts cannot be enforced by the creditor, 
if his claim extends back beyond the statutory period of time. 


10 Decretales Greg. IX, ec. 14 and 8, De Prescriptionibus, lib. IT, tit. 26. 
11 Decretales Greg. IX, c. 20, De Presc., lib. II, tit. 26. 


174. A PRACTICAL COMMENTARY 


That period varies in the different states, not only in reference 
to different kinds of debts, but even in regard to the same kind 
of debts. The law, however, admits that the debt itself is not 
wiped out by the statute of limitation, but the ereditor is barred 
from enforcing the debt, if the debtor avails himself of the 
Statute and pleads it in his defence. The Code does not admit 
any prescription without good faith. If, therefore, a person 
knows that he owes a debt and has not paid it, no lapse of 
time frees him from the obligation to pay the debt. Good faith 
is likewise required in prescription which affects real estate, 
either as to the title to land, the acquisition of rights over it, 
or the escape from burdens resting on one’s real estate. With- 
out good faith, the lapse of the statutory time specified by the 
civil law does not confer any rights in conscience. 


DONATION AND BEQUESTS IN Favor oF RELIGION oR CHARITY 


1506. Persons who are entitled by the natural and the eccle- 
siastical law to dispose freely of their goods, may relinquish 
them in favor of religion or charity by direct donation or by a 
donation to take effect after their death. In last wills made in 
favor of the Church the formalities of the civil law should, if 
possible, be complied with; if they were omitted, the heirs 
should be admonished to fulfill the wish of the testator (Canon 
1513). 

In the disposal of one’s goods in favor of religion or charity, 
a person has full freedom of action, if no obstacle is raised by 
the natural or the ecclesiastical law; the civil law is not con- 
sidered in this matter, except that the Church urges the donor 
to comply with the formalities of the civil law to avoid diffi- 
culties. It is evident that the Church claims exclusive jurisdic- 
tion over donations and bequests in favor of religion or charity. 
Before the promulgation of the Code it was disputed whether 
donations and last wills made in favor of religion or charity 
by a person who has the right to dispose of his goods, were 
valid and binding in conscience, if they were made without the 
formalities of the civil law, and were therefore considered 
invalid before the State. The Code asserts the exclusive juris- 
diction of the Church over this matter, and the commentators 


12 Tanquerey, ‘‘Synopsis Theol. Moral.’’ (5th ed.), III, 101, 
ETSY, Pp | ) 











CANONS 1513-1515 175 


on the Code seem to agree that the Code closes the contro- 
versy. Vermeersch-Creusen explain why Canon 1513 uses the 
mild expression ‘‘moneantur heredes’’—namely, to avoid press- 
ing the obligation too hard and disturbing, perhaps, the good 
faith of persons who believe that, when the civil law pronounces 
the donation or bequest invalid, they can follow the law.% 
The opinion that one might follow the civil law in bequests to 
religion or charity never found many supporters, and the 
Sacred Penitentiary plainly held the contrary, when, in a case 
decided January 10, 1901, it said that the practice of this 
Sacred Tribunal was to consider the legata pia (legacies in favor 
of religion or charity) valid and binding in conscience, but that 
the heirs were usually permitted by the Sacred Penitentiary to 
make a friendly settlement with the church or charitable insti- 
tute in whose favor the legacy was left." 

1507. The will of the faithful who leave their goods by dona- 
tion or last will to religion or charity shall be most faithfully 
executed, even in reference to the manner of administration 
and application of the goods, subject to the law of Canon 1515 
(Canon 1514). The Code here speaks of two kinds of donations 
—the donation pure and simple, and the donation ‘‘mortis 
eausa,’’ which is conditioned on the death of the donor and in 
the civil law of the United States falls under the general class 
of conditional gifts. The Church strictly demands that the 
wishes of the donor who favors a church or charitable cause be 
earried out in the manner desired by him, unless he has at- 
tached a clause which denies the Ordinary the right to execute 
and supervise these donations and bequests. 

1508. The Ordinaries are the executors of all donations and 
bequests made in favor of religion or charity. In virtue of this 
right, the Ordinaries have power and are obliged to see, even 
by visitation, that the pious intentions are complied with; other 
delegated executors must give an account to the Ordinary after 
they have performed their office. Clauses denying this right 
of the Ordinaries, if added to last wills, are to be ignored 
(Canon 1515). 

The Code states that ‘‘Ordinaries’’ are executors; the local 
Ordinaries and the major religious superiors of exempt organi- 


13 Epitome, II, n. 835. 
14 Acta S. Sedis, XXXIV, 384. 


176 A PRACTICAL COMMENTARY 


zations are included in this term. If the donation or bequest 
or legacy is made in favor of an exempt religious organization 
in such a manner that it is destined for the Order or Congrega- 
tion itself, the major religious superior of the exempt religious 
is the executor and supervisor of the donation or bequest; if 
it is given to the religious in favor of some work of charity or 
religion which they direct, the local Ordinary is the executor 
and supervisor of the donation or bequest (cfr. Canons 1491- 
1492). 

1509. The cleric or religious who has, either by way of dona- 
tion or by last will, received goods in trust for pious causes, 
‘must notify the Ordinary concerning the trusteeship, and de- 
scribe all such goods, both movable and immovable, with the 
obligations attached to them. If the donor has explicitly and 
absolutely forbidden all reference to the Ordinary in this man- 
ner, the cleric or religious shall not accept the trust. The Ordi- 
nary must demand that the goods received in trust be safely 
invested, and supervise the fulfillment of the pious intentions 
of the donor, as provided by Canon 1515 (Canon 1516). If a 
religious is put in trust of goods left in favor of any church of 
the place or of the diocese, or to help the residents or pious 
works of the diocese, the Ordinary spoken of in this Canon is 
the local Ordinary; otherwise, he is the Ordinary of the re- 
ligious. 

The law of the Decretals** and the Council of Trent *° 
already contained the same regulation as Canon 1516. All 
funds donated or bequeathed for purposes of religion and char- 
ity in the diocese are under the supervision of the local Ordi- 
nary; the only exception is made in favor of exempt religious 
or clerical organizations for donations and bequests made in 
favor of the religious themselves and their churches and houses, 
in which eases the Ordinary of the religious has the obligation 
to see that the will of the donor is accomplished, and that the 
obligations attached to the donation or bequest are fulfilled. 
In demanding that a report be made to the Ordinary of all 
donations and bequests, the Code has in view, as Cocchi re- 
marks,’’ cases in which a donation or bequest necessitates a 


15 Decretales Greg. IX, ec. 3, 6, 17, 19, De. Testaments, lib. ITI, tit. 26. 
16 Sessio XXII, c. 8, De Reform. 
17 Commentarium, VI, n. 195. 


CANONS 1516-1517 177 


continued administration, and not cases in which persons 
donate or leave by last will a certain sum of money either to 
buy some specified articles or to go into the common fund (e.g., 
of a hospital, childrens’ home, parish church, ete.). In the 
general report which these churches and institutions must ren- 
der to the local Ordinary, these donations and bequests must 
of course also be specified and accounted for. Though the 
Code implies that a religious may be a trustee of funds given 
for religion or charity, the Constitutions of the different organi- 
zations must be consulted to ascertain whether perhaps the 
particular Order or Congregation forbids it, as is done by the 
Constitutions of the Order of Friars Minor.*® 

1510. The reduction, mitigation, and commutation of testa- 
mentary requests is reserved to the Holy See, and shall be done 
only for a just and necessary cause. The local Ordinary has 
no power to modify last wills, unless the founder has explicitly 
conceded it to him. If, however, through no fault of the execu- 
tors, the execution of the imposed obligations has become impos- 
sible because of a decrease of the revenue or some other reason, 
the Ordinary, after having heard all interested parties and 
adhering in so far as possible to the will of the founder, may 
reduce the obligations according to the laws of equity; the 
reduction of Masses, however, is always reserved exclusively 
to the Holy See (Canon 1517). 

Canon 1517 speaks of last wills only, for, if the donor is still 
living and the income of the fund he donated for some religious 
or charitable purposes decreases, a readjustment can be made 
with his consent. The Code grants power to the local Ordinaries 
to readjust the obligations of last wills in the emergency men- 
tioned in Canon 1517; this right is reserved to the local Ordinary 
to the exclusion of Ordinaries of exempt clerical organizations 
of religious. The Council of Trent had ruled: ‘‘In alterations 
of last wills—which alterations ought not to be made except 
for a just and necessary cause—the bishops, as delegates of the 
Apostolic See, shall, before the alterations aforesaid are carried 
into execution, ascertain that nothing has been stated in the 
prayer of the petition which suppressed what is true or suggests 
what is false.’’ 1 


18 Regula et Constitutiones Generales Fratrum Minorwm (Quaracchi, 
1922), cap. IV, n. 234. 
a9 Sessio XXII, cap. 6, De Reform. (ed. by Waterworth). In refer- 


178 A PRACTICAL COMMENTARY 


TITLE XXVIII 


OF THE ADMINISTRATION OF ECCLESIASTICAL GOODS 


1511. The Roman Pontiff is the supreme administrator and 
dispenser of all ecclesiastical goods (Canon 1518). 

The title or ownership of ecclesiastical goods is vested in 
the individual legal ecclesiastical person, but it is an ownership 
of a peculiar type which in effect approaches trusteeship. The 
legal person who holds the title to church property and goods, 
is not free to use and dispose of the goods at will, as the owner 
of private property can do. Canon Law regulates the use and 
administration of ecclesiastical goods. That the Roman Pontiff 
is by his very office the supreme administrator and dispenser 
of all ecclesiastical goods, is evident from the very constitution 
of the Catholic Church. Great as his powers are as supreme 
administrator, they are limited by the very nature of ecclesi- 
astical goods, which are held in trust by ecclesiastical persons 
for the purposes of charity and religion. 

1512. The local Ordinary has the duty of diligently super- 
vising the administration of all ecclesiastical goods in his terri- 
tory, with the exception of those goods which have been with- 
drawn from his jurisdiction; if legitimate prescription gives 
him greater rights, such prescription stands. Within the limits 
of the common law and with due regard to the rights acquired 
by others, legitimate customs and circumstances, the Ordinaries 
shall issue timely instructions for the regulation of the entire 
matter of the administration of ecclesiastical goods within their 
territories (Canon 1519). 

Under the present Title (XXVIII), the goods of religious 
organizations are not directly treated, for that part of the 
Code which deals especially with laws for religious contains a 
special chapter on the administration of temporal goods by 
religious (cfr. Canons 531-537; above, Volume I, 202 sqq.). 

The Code does not describe the local Ordinary—as it did 
the Roman Pontiff—as the administrator of all the ecclesiasti- 
eal goods of his territory, but as a supervisor or inspector. 
ence to the reduction of Masses, the Committee for the Authentic Inter- 
pretation of the Code declared, July 14, 1922, that the Ordinary can reduce 


Mass obligations, if the document or charter of the foundation expressly 
gives him that right (Acta Ap. Sedis, XIV, 529). 





CANONS 1518-1520 ibe 


The individual ecclesiastical persons hold the title, and are the 
actual administrators of the ecclesiastical goods proper to that 
legal person. From this it follows that, while the local Ordi- 
nary has the right and duty to pass proper regulations for the 
administration of ecclesiastical goods in the territory of his 
jurisdiction, he cannot interfere in the ordinary administration 
of the various legal persons as long as they act within the law. 


DIOCESAN BOARD OF ADMINISTRATION 


1513. For the proper discharge of this duty, every Ordinary 
shall establish in his episcopal city a board of administrators, 
which is to consist of the Ordinary, as president, and two or 
more qualified men who should, in so far as possible, be familiar 
also with the civil law. The members of the board are to be 
appointed by the bishop after consultation with the Cathedral 
Chapter (diocesan consultors), unless some other equivalent 
provision has already been legitimately made by special law or 
custom. 

Persons related to the local Ordinary by blood relationship 
or affinity in the first or second degree cannot be appointed 
to the board of administration, except by indult of the Apos- 
tole See. 

The local Ordinary shall not omit to consult the board of 
administrators in the more important administrative affairs; 
the vote of the members of the board is only consultive, unless 
the common law in certain explicitly stated cases or the charter 
of a foundation rules that the consent of the board is required. 
The members of the board shall take an oath before the Ordi- 
nary for the good and faithful performance of their office 
(Canon 1520). 

1514. Besides this diocesan board of administrators, the 
local Ordinary shall appoint prudent and qualified men of good 
reputation for the administration of goods belonging to any 
church or pious institution for which no administrator is pro- 
vided either by law or by the charter of foundation. They 
should be changed after three years, unless local circumstances 
make a more or less frequent change advisable. If laymen 
participate in the administration of ecclesiastical goods, either 
by legitimate: title of the foundation or erection or by the will 


180 A PRACTICAL, COMMENTARY 


of the local Ordinary, the administration must be entirely trans- 
acted in the name of the Church, and the Ordinary has the 
right of visitation, of demanding an account, and of prescrib- 
ing the manner of administration (Canon 1521). 

In the United States the pastors of parishes are often 
assisted in the administration by two lay trustees. The manner 
of appointing them and their term of office is by the Third 
Council of Baltimore left to the statutes of each diocese to 
determine. The same Council points out the necessary qualifi- 
cations of the men who may be appointed as trustees.2° Dio- 
cesan charitable institutions usually have a larger board of 
directors, nor are the parishes limited to two trustees, for the 
Baltimore Council does not limit their number. All these mat- 
ters are to be regulated by the local Ordinaries, as the Code 
merely insists that each church or ecclesiastical institute shall 
have an administrator or a board of administrators. 


DutTIES oF THE BoARD or ADMINISTRATION 


1515. Before the administrators mentioned in the preceding 
Canon enter upon their duties: 

(1) they must take an oath before the local Ordinary or 
the vicar-forane (dean of the respective district) that they will 
faithfully attend to the administration; 

(2) they must make an accurate and specific inventory—to 
be signed by all the administrators—of immovable and precious 
movable goods and all other property, with their description 
and valuation; if they use an old inventory, those goods that 
were lost and those that were acquired in the interim must be 
marked down; 

(3) one copy of this inventory is to be deposited in the ar- 
chives of the administration, and another copy in the archives 
of the diocesan Curia. In each copy shall be noted any change 
which the goods of the church or institution may undergo 
(Canon 1522). 

1516. As the administrators are bound to fulfill their office 
with the solicitude of a good father of a family, they shall: 

(1) guard against any loss of or damage to the ecclesiastical 
goods confided to their care; 

(2) observe the rules of both the Canon and civil law, and 

20 Acta et Decreta Conc. Balt. III, n. 287. 














CANONS 1521-1524 181 


the special regulations imposed by the founder or donor or the 
legitimate authority ; 

(3) collect the revenues and income of the goods diligently 
and. at the proper time, keep them in a safe place, and spend 
them according to the intention. of the founder or the existing 


_laws and regulations; 


\ 


(4) invest the surplus revenue of a church, with the con- 
sent of the Ordinary, to the benefit of the church; 

(5) keep the records of receipts and expenditures in good 
order ; 

(6) arrange and keep the documents and papers on which 
the property rights of the church are based in the archives or 
in a suitable or proper safe; authentic copies of these papers 
should, wherever it can be conveniently done, be kept also in 
the archives or safe of the diocesan Curia (Canon 1523). 

1517. All who employ workingmen must pay them just and 
decent wages, which rule applies especially to clerics, religious 
and administrators of ecclesiastical goods. They must see that 
the workingmen are free to perform their religious duties at a 
convenient hour; they shall make no arrangement that will 
interfere with the workers’ duties to their families and practice 
of thrift, and shall not impose on them work which is heavier 
than their strength can bear, or which is not suited to their 
age or sex (Canon 1524). 

The sociologists deal with the points mentioned in Canon 
1524.22. The history of Christianity bears witness to the fact 
that the Catholic Church has used her power and influence 
for the betterment of the conditions of the poor, the sick and 
the afflicted. Many times she has raised her voice against men 
of wealth and power, if they oppressed the weak and the poor. 
In the present sociological conditions, the question of just and 
fair wages (or of a so-called living wage) is a very big and 
difficult problem, especially in a country as large as the United 
States. Pope Leo XIII has laid down in detail the general 
principles which should guide Christians in the relation between 
employer and employee.” 

21 John A. Ryan, ‘‘A Living Wage’’ (New York, 1906) ; ‘‘Distributive 
Justice’? (New York, 1919); Ryan and Husslein, ‘‘The Church and Labor’’ 


(New York, 1920). 
22 Bneyclical ‘Rerum Novarum,’’ Mry 15, 1981 (Acta S. Sedis, XXIII, 


641). 


182 A PRACTICAL COMMENTARY 


1518. All administrators, both clerics and laymen, are bound 
to make an annual report to the local Ordinary of their admin- 
istration of all churches (including the cathedral church), pious 
places (religious or charitable institutes) canonically erected, 
and confraternities; contrary custom is disapproved. It} by 
special law, the financial statement has to be made to other 
specified persons, the local Ordinary or his delegate must also 
be admitted to inspect the report besides these persons; other- 
wise the administrators are not freed from their lability, though 
the aforesaid persons have discharged them (Canon 1525). 

As stated before, the entire Title XXVIII does not consider 
the administration of goods and property held by religious or- 
ganizations. Hence, the phrases ‘‘cujusvis ecclesia”’ and ** eujus- 
vis loci pii’’ (used in this Canon) may not be applied to places 
held by the religious; how far the supervisory right of the 
local Ordinary extends in the case of ecclesiastical property 
of the religious is stated in Canons 531-537. 


LIMITATIONS OF THE RIGUTS OF ADMINISTRATORS 


1519. The administrators shall not start a lawsuit in the 
name of the church nor enter a contestatio (a formal denial 
in court by defendant of the rights claimed by the plaintiff), 
unless they have first obtained the consent of the local Ordinary 
in writing, or in urgent cases at least the consent of the vicar- 
forane (dean), who shall at once inform the Ordinary of the 
permission granted (Canon 1526). 

1520. The administrators act invalidly in actions which ex- 
ceed the limits of the ordinary administration, unless they first 
obtain the faculty in writing from the local Ordinary. The 
Church is not liable for contracts made by administrators with- 
out the permission of the competent superior, except when and 
in so far as the contracts have turned to its advantage (Canon 
1527). The Church does not recognize the illegal contracts of 
administrators, and therefore refuses to allow the particular 
church or ecclesiastical institution to ineur loss as the result 
of such illegal action. In the United States the churches and 
institutions are as a rule incorporated under the provisions of 
the civil law, and the rules of the Canon Law and the par- 
ticular regulations of the bishop may be embodied in the by- 














CANONS 1525-1529 183 


laws of the corporation, so that before the civil law also the 
unauthorized contracts of the administrators are null and void. 

1521. Even those administrators who are not bound to act 
as such in virtue of a benefice or ecclesiastical office, but who 
have explicitly or tacitly accepted the office, and then abandon 
it of their own accord in such a way as to cause loss to the 
Church, are bound to make restitution (Canon 1528). 


TITLE XXIX 


OF CONTRACTS 


1522. Whatever the civil law of a country decrees on con- 
tracts and payments of all kinds is to be observed also by Canon 
Law in ecclesiastical matters, and has the same effects, except | 
in so far as the civil law is contrary to the divine law, or Canon 
Law rules otherwise (Canon 1529). 

This Canon simplifies matters by adopting the civil law of 
the different countries for contracts concerning ecclesiastical 
goods and the rights connected with the same. That the civil 
law may not be followed, if perchance it contravenes the divine 
law, is obvious. As the Church has the right of free and inde- 
pendent administration of her own affairs, she has the right 
to rule as she sees fit in the matter of contracts about ecclesi- 
astical goods. Therefore, she says the civil law is to be followed 
except in those points in which the Church has made her own 
special regulations. 


ALIENATION OF ECCLESIASTICAL GOODS 


1523. Without prejudice to the special law of Canon 1281 
governing the transfer of important relics and precious images, 
the following rules shall govern the alienation of ecclesiastical 
eoods, both immovable and movable, if the latter are of such 
nature that they can be preserved: (1) an appraisal in writing 
is to be made by conscientious experts; (2) there must be a 
just cause for disposing of the goods, which cause may be urgent 
necessity, or evident utility to the Church, or piety; (8) the per- 
mission of the legitimate superior must be obtained, and without 


184 A PRACTICAL COMMENTARY 


this the alienation is invalid. Other opportune precautions, 
which the ecclesiastical superior should demand according to 
the circumstances of the case, must not be omitted so that all 
loss to the Church may be avoided (Canon 1530). 

The Code uses the term ‘‘alienation,’’ not only in the sense 
of sale, but also for any other contract by which a third party 
acquires any right in the real or personal property belonging 
to a legal ecclesiastical person. The formalities mentioned in 
Canon 1530 are not required when there is question of goods 
which cannot be kept without danger of spoiling (e.g., fruits 
and vegetables, eggs, and the like). In the United States there 
is not much occasion for the application of the rule concerning 
perishable goods. The permission of the legitimate superior for 
the alienation of ecclesiastical goods is essential to the validity 
of the contract. Canon 1532 points out who the legitimate 
superior is (namely, either the Holy See or the local Ordinary) ; 
the same Canon specifies what contracts need the permission of 
the Holy See, and what contracts may be authorized by the 
local Ordinary. 

1524. The goods must not be disposed of for a lesser price 
than was stated in the appraisal of the experts. The sale is to be 
made by public auction, or must at least be announced publicly, 
unless circumstances make a different course advisable; the goods 
shall be sold to the one who, all things considered, offers the 
better price. The money obtained from the sale of the goods 
shall be carefully placed in safe and productive investments 
(Canon 1531). 


PERMISSION FOR ALIENATION 


1525. The legitimate superior, who, according to Canon 1530, 
n. 3, gives permission for the alienation of ecclesiastical 2oods, 
is the Holy See in the case: (1) of precious goods; (2) of 
goods which exceed in value the sum of thirty thousand lire or 
franes (Canon 1532, §1). 

The local Ordinary may give permission in the ease of goods 
which do not exceed in value one thousand lire or franes, after 
he has heard the board of administration (unless the matter is 
of very little importance), and has obtained the consent of the 
interested parties, In the case of goods valued at between one 


—————— = 


CANONS 1530-1533 185 


thousand and thirty thousand lire or franes, the local Ordinary 
may give permission provided he has obtained the consent of 
the Cathedral Chapter (diocesan consultors), of the board of 
administration, and of the interested parties. In the case of 
the alienation of divisible goods, the request for permission 
or consent must state what portions were already alienated; 
otherwise the permission is invalid (Canon 1532, §§ 2-4). 

In normal exchange thirty thousand lire or francs make about 
six thousand dollars (cfr. above, Volume I, n. 414). Before 
selling any ecclesiastical goods, an appraisal of their value is, 
as Canon 1530 prescribes, to be made by experts. If the esti- 
mated value does not exceed thirty thousand lire or frances 
($6000), but at the sale a higher price is offered, the permission 
of the Holy See is not required, as was declared by the President 
of the Committee for the Authentic Interpretation of the Code.” 
As we shall see below, the rules of Canon 1532 apply, not only to 
the sale of ecclesiastical goods, but also to the contracting of debts 
or to burdening the ecclesiastical property in any manner. 

1526. The formalities demanded by Canons 1530-1532 are 
required not only in an alienation properly so-called, but also for 
any contract which may have a prejudicial effect on the status of 
the church (Canon 1533). 

The impairing of the financial status of the church without 
the prescribed formalities is forbidden. The contract itself may 
be advantageous to the church (e.g., the leasing of property to 
others for payment to be made to the church), but the church 
property as such is for the time being less valuable. The spend- 
ing of money for the purpose of buying goods and property for 
the church is not spoken of in the Canons on the alienation of 
church property. Such expenditure is made either in the course 
of the ordinary administration (which spending of money for 
the acquisition of things ordinarily needed is part of the office of 
the administrator), or for new enterprises (e.g., new buildings), 
or finally in the purchase of land or valuable securities. Now, 
for the protection of the interests of the church or ecclesiastical 
institute, Canon 1527 rules that all acts of the administrators 
which exceed the bounds of the ordinary administration are 
invalid, unless they are done with the previous written permis- 
sion of the local Ordinary. 


23 November 24, 1920 (Acta Ap. Sedis, XII, 577). 


186 A PRACTICAL COMMENTARY 


DEFENCE OF THE CHURCH AGAINST UNLAWFUL ALIENATION 


1527. The Church has the right of personal action against 
any individual who, without the necessary formalities, alienated 
ecclesiastical goods, and against his heirs; the right of real action, 
if the alienation was invalid, against any possessor of the goods 
illegally disposed of, leaving to the buyer the right to sue the 
person who illegally sold the goods. The invalid alienation of 
ecclesiastical goods may be contested by the person who alienated 
them, by his superior, by the successors of either in office, and by 
any cleric assigned to the church which sustained a loss (Canon 
1534). 

The disposal of the ecclesiastical goods is invalid if any for- 
mality was neglected which is prescribed under pain of invalidity 
(e.g., the consent of the legitimate superior) ; 1f a formality was 
omitted which is demanded for licitness only, the alienation is 
valid. If the alienation is valid but illicit, the church or ecclesi- 
astical institute whose goods were thus disposed of has the right 
to sue the person who acted illicitly, and make him pay for the 
damage ; Canon Law gives the right to sue also his heirs. In the 
case of invalid alienation, there is the right to sue either the per- 
son who illegally disposed of the church property, or the 
possessor of the property. Since the disposal of it was in- 
valid, the possessor did not acquire title to the property, and the 
church or ecclesiastical institute can reclaim those goods wherever 
they are found. In the matter of ecclesiastical property the 
Church is, as we saw above, independent of the civil power, and 
her rules oblige the subjects of the Church to obey those laws, 
even though some of the provisions of Canon 1534 cannot perhaps 
be enforced in the civil courts. In the United States where the 
churches and ecclesiastical institutions are usually incorporated 
under the laws of the respective states in which they are located, 
the Canon Law rules may be embodied in the by-laws of the indi- 
vidual corporations in such a way that the rights of the Church 
over the goods and property are well protected. 


DONATIONS BY OR TO THE CHURCH 


1528. Prelates and rectors shall not presume to make dona- 
tions from the movable goods of their churches, except in small 


CANONS 1534-1536 187 


and moderate amounts as sanctioned by the legitimate custom of 
the place, unless there is a just cause of remuneration, or piety, 
or Christian charity; otherwise, the donations can be reclaimed 
by their successors (Canon 1535). 

1529. Unless the contrary is proved, it is to be presumed that 
donations given to rectors of churches (even the churches of 
religious communities) are given to the church. <A donation 
made to a church cannot be refused by the rector or superior 
without permission of the Ordinary. The illegitimate refusal 
of a donation to a church constitutes the legal basis for a suit for 
restitutio m wntegrum or indemnity for any losses that may result 
from such refusal. A donation made to and legitimately accepted 
by a church cannot be recalled by the benefactor because of the 
ingratitude of the prelate or rector (Canon 1536). 

The law supposes that the intention of the donor in offering 
a donation to the rector of a church is to benefit the church, not 
the rector personally—or his community, if pastor or rector 
belongs to a religious community. Unless, therefore, the donor 
manifests his intention of making a personal gift, or such inten- 
tion is morally certain from the circumstances, the law forbids 
it to be considered a personal donation. The Third Council of 
Baltimore had stated a presumption similar to that of the Code in 
the ease of donations of vestments and sacred utensils generally, 
which were to be considered given to the church, unless the con- 
trary intention had been explicitly declared by the donors.** 
The presumption of the Code goes further, as it extends to 
donations of all kinds. 

1530. The Church demands that the priest in charge of a 
ehurch or other ecclesiastical institute work for its advancement. 
Wherefore, she forbids him to refuse donations offered for the 
benefit of the church or institution. The permission of the Ordi- 
nary of the diocese is required to refuse such an offering—or, in 
the case of exempt clerical organizations of religious, the permis- 
sion of the major superior, if the donation is offered in favor of 
the religious. If one has without permission refused a donation, 
Canon Law gives the church or institution the right either to get 
reinstated in its former condition (restitutio in integrum, 1.¢., 
before the offer was refused), or to sue the one who illegitimately 
refused the gift to indemnify the church or institution. The first 


24 Acta et Decreta C. Balt. III, n. 276. 


188 A PRACTICAL COMMENTARY 


manner of regaining the lost donation will in many cases be 
impossible, because the benefactor may have changed his mind, 
and feels offended at the refusal. The second manner of indem- 
nifying the church or institution is given as a punishment of the 
priest’s or prelate’s disregard of the explicit regulation of this 
Canon, forbidding the refusal of a donation for the church or 
institution without the permission of the Ordinary. It cannot be 
said that the refusal of the donation for the benefit of another is 
contrary to justice, if no deceit, lies, or other unjust means are 
employed to dissuade the benefactor from making the donation. 
The Code, however, makes the prelate or rector liable for the loss, 
if the ecclesiastical court decides against him. In the civil courts 
of the United States, and very likely in any other country, no 
right of action is given in the ease. 


LoANs, PLEDGES, Morra@aces, Depts 


1531. Sacred objects shall not be loaned for purposes repug- 
nant to their nature (Canon 1537). If the goods of a church are 
for a legitimate reason to be pledged or mortgaged, or debts are 
to be contracted, the legitimate superior who has according to 
Canon 1532 the right to grant permission shall insist that pre- 
viously all parties interested are heard, and he shall see that the 
debts are paid off as soon as possible. The same Ordinary shall 
for this purpose determine the annual rate at which the debt is 
to be extinguished (Canon 1538). 

The lending of sacred objects for the use of another is not 
forbidden, provided the sacred objects are not loaned for pur- 
poses unbecoming to the dignity of sacred objects. Generally 
speaking, the administrators of these sacred things do not need 
permission of the Ordinary to lend them, but, if the objects are 
of great value and their loan extends over a considerable length 
of time, the principle of Canon 1533 applies—i.e., the formalities 
of Canons 1530-1532 must be observed in any contract or agree- 
ment by which the status of the church is impaired. 

The contracting of debts and the mortgaging or pledging of 
ecclesiastical goods and property (e.g., giving bonds in security 
for a loan made to a church) are subject to the rules of Canon 
1532. The amount of the debt or the value of the mortgage or 
Security given determines whether the Ordinary can give the 








CANONS 1537-1539 189 


permission, or whether the permission of the Holy See is de- 
manded. 


SALE AND EXCHANGE 


1532. In the sale or exchange of sacred objects the fact of 
their consecration or blessing must receive no consideration in 
appraising their value. Administrators may exchange notes pay- 
able to bearer for other valuable papers which are at least equally 
safe and profitable, but must avoid any kind of barter or trading; 
such transactions also require the consent of the Ordinary, the 
diocesan board of administration and other interested parties 
(Canon 1539). 

The sale of objects which have been blessed or consecrated is 
permitted, unless the law in some ease forbids it because of the 
danger of irreverence to the sacred object (cfr. Canon 727). 
These things retain the material value which they possessed 
before they were consecrated or blessed, and may be sold for that 
valuation. If the price were raised because of the blessing or 
consecration which had been imparted to these objects, it would 
mean that the spiritual thing is made the object of barter for 
something temporal, which is forbidden by the divine law. 
Though a church may sell consecrated chalices, or blessed vest- 
ments, or a blessed chapel, the rule that sacred objects may not be 
loaned for purposes unbecoming to the nature of things sacred 
(cfr. Canon 1537) applies also in the sale of blessed or conse- 
erated objects. The law of the Decretals forbids the sale of 
churches even between two ecclesiastical persons.?° In comment- 
ing on Canon 1539, Ferreres concludes that it is lawful to sell 
rosaries, medals and other religious objects which have been 
blessed, though they lose the indulgences through the sale, by the 
explicit rule to that effect in Canon 924.?° That opinion seems 
to be a legitimate conclusion from the two Canons in question, 
1539 and 924, for no prohibition to sell is contained in Canon 924. 

1533. As to the exchange of commercial papers possessed by 
a church or other ecclesiastical person, it is necessary to keep in 
mind that an exchange only—not a sale—is permitted with the 
consent of the Ordinary, the diocesan board of administration, 
and the interested parties. The sale of such papers comes under 


25 Decretales Greg. IX, c. 15, De Simonia, etc., lib. V, tit. 3, 
26 Institutiones Canonice, II, n. 507, 


190 A PRACTICAL COMMENTARY 


the general laws for the alienation of ecclesiastical property. Of 
course, a sale of these securities may be implied, for it may not 
be possible to get other securities from the same person to whom 
the securities of the church are sold. The intention of the law 
seems to be to allow the administrators some liberty in disposing 
of one kind of securities with the view of buying other more 
favorable securities. Wherefore, the permission of the Holy See 
is not required for such a transaction, even though the value of 
the securities amounts to more than thirty thousand franes. By 
declaration of the Sacred Congregation of the Council, February 
17, 1906, the permission of the Holy See was required for the 
exchange of securities in the same manner as for the sale of 
immovable and of precious movable goods.?7 The Code modifies 
this declaration. 


SALE AND LEASE OF REAL ESTATE 


15384. Without the special permission of the local Ordinary 
the immovable goods of a church shall not be sold or leased to the 
administrators of the same church, or to persons related to them 
in the first or second degree of consanguinity or affinity (Canon 
1540). 

Land belonging to a church should not be leased except by 
publie auction or other public announcement, unless special cir- 
cumstances make a different course advisable ; and conditions are 
to be added to the contract concerning the guarding of the bound- 
aries, the proper cultivation of the soil, and the payment of the 
rent, all of which should be secured by proper guarantees (Canon 
1541, § 1). 

In the leasing of ecclesiastical goods Canon 1479 must be 
observed (which forbids the holder of a benefice to receive pay- 
ment of the rent for over six months in advance from leased 
property of the benefice) and in addition the following regula- 
tions: (1) if the value of the lease exceeds thirty thousand lire 
or francs and lasts over nine years, the permission of the Holy 
See is required for the renting of the property; if the lease does 
not exceed nine years, the rule of Canon 1532, § 3, is to be fol- 
lowed (the local Ordinary can give permission) ; (2) zf the value 
is between one thousand and thirty thousand francs and the lease 


27 Acta S. Sedis, XXXIX, 159. 





CANONS 1540-1542 191 


is for more than nine years, Canon 1532, § 3, applies (local Ordi- 
nary can give permission with the consent of the Cathedral 
Chapter and interested parties) ; if the lease does not exceed nine 
years, Canon 1532, § 2, applies (the local Ordinary gives permis- 
sion with the advice of the Chapter and the consent of the inter- 
ested parties); (3) if the value does not exceed one thousand 
francs and the lease extends over nine years, Canon 15382, § 2, 
applies; if the lease does not extend over nine years, it may be 
done by the legitimate administrators, informing the Ordinary 
of the fact (Canon 1541, §§ 2-3). 

There are very few churches or ecclesiastical institutions in 
the United States which have land or houses to lease. The value 
of the lease which determines the formalities required by the 
Code, is based on the annual rent to be paid, not the aggregate 
payments during the life of a lease. In the law before the Code, 
the leasing of real estate for more than three years required the 
permission of the Holy See.?8 

1535. In the peculiar form of a lease of ecclesiastical goods 
which is called emphyteusis, the lessee cannot be relieved from 
the obligation of paying the stipulated consideration [here called 
the canon] without the permission of the legitimate ecclesiastical 
superior spoken of in Canon 1532; if he is permitted to free him- 
self, he must pay at least that sum of money to the church which 
corresponds to the consideration. Appropriate security must be 
demanded from the lessee for the payment of the consideration 
(canon), and for the fulfillment of the condition of the lease. 
In the instrument itself by which the contract of emphyteusis is 
drawn up, the ecclesiastical forum is to be declared the arbitrator 
for the settling of all controversies which may possibly arise 
between the parties, and it shall be expressly declared in the 
instrument that the improvements belong to the soil—and not to 
the lessee (Canon 1542). 

The contract of emphyteusis, which is not known in the 
United States but exists in other countries, is, according to 
Ferraris, a contract by which real estate is leased to a third party 
(called the emphyteuta) so that he enjoys the right to use the 
property and becomes the owner of its produce, either for all time 
or for a definite period, not less than ten years, under condition 


28 Ojetti, ‘Synopsis Rerum Moral. et Juris Pont.,’’ I, s. v. Alienatio. 


192 A PRACTICAL COMMENTARY 


that he pays annually a certain consideration.”® This considera- 
tion which is to be paid annually may be either in kind (i.e., of 
the produce of the land) or in money, and is ealled the ‘‘canon.’’ 
The landlord retains the mere ownership or title; the emphyteuta 
has the dominiwm utile, the right to use and enjoy the land. 


INTEREST ON LOANS 


1536. If a fungible thing is given to another in such a manner 
that it becomes his own, and is to be later on returned in 
kind only, no gain may be made by reason of the contract itself. 
However, in lending a fungible thing, it is not per se illicit to 
make an agreement about the legal interest (unless it is certain 
that it 1s excessive), nor is it illicit to make an agreement for 
more than the legal interest, if a just and proportionate title 
justifies such an agreement (Canon 1543). 

Fungible goods are described by Webster as ‘‘a thing of a 
class or kind such that one individual or part may be used in 
place of any other individual or equal part in satisfaction of an 
obligation.’’ These things are usually estimated in number, 
weight, or measure, and are of a nature that they are consumed 
by the first user. The mutwum is a ‘‘loan of fungible things to 
be restored in kind and of the same quantity and quality.’’ °° 
The question of the contract called mutwum has been the subject 
of much controversy. The position of the Church is that, if we 
lend something to another and demand of him in return more 
than was lent him, we take an undue advantage of the other. 
As late as May 9, 1821, the Holy Office declared that the making 
of profit from a loan as a loan (ex mutuo vi mutr) is unlawful.** 
In his Encyclical ‘‘ Vix pervenit,’’ Pope Benedict XIV states that 
he had the whole question of the ‘‘mutuum’’ submitted to a 
committee composed of many learned men, and that they all 
agreed that it was wrong to charge any interest for a loan as 
such, but that there could be together with the ‘‘mutuum”’ other 
titles or reasons why interest may be taken.*? Jn 1873 the Sacred 
Congregation of the Propaganda declared that, in lending money 
at interest, the provision of the civil law allowing a certain 


‘¢ 


29 ‘“ Bibliotheca,’’ II, s. v. Contractus emphyteusis, art. 1. 
30 New International Dictionary (Springfield, Mass., 1924). 
31 Collectanea de P. F., I, n. 759. 

32 Gasparri, ‘‘ Fontes Cod. Jur. Can.,’’ I, 939. 








i 











CANONS 1543-1545 193 


amount of interest may be taken as a sufficient reason to justify 
this practice (even though there are no other reasons, such as 
loss of profit to the lender, risks taken by him, ete.), until the 
Holy See should definitely decide the question.*? 

The Code practically closes the controversy by stating that in 
the loan of a fungible thing it is not per se illicit to make an 
agreement about the legal interest. It goes still further by de- 
claring that even more than the legal interest can be stipulated, 
if there are special reasons to justify the higher interest. In the 
United States most states have statutes against usury—that is, 
‘‘taking or reserving by contract a greater compensation or rate 
of interest for the loan of money than the highest rate of interest 
allowed by law.’’ ** In those states or countries which allow the 
taking of a high rate of interest that is altogether against natural 
equity, the law cannot be followed in conscience, as the Code 
states. The definition of what is an excessive rate of interest, 
depends largely on local conditions. There is no doubt that 
money under the present conditions of life is by no means a dead 
and unproductive thing. No civilized nation of the world could 
to-day exist and prosper without the system of loans and interest. 


TITLE XXX 


OF PIOUS FOUNDATIONS 


1537. By the term ‘‘pious foundations”’ are meant temporal 
goods given to some legal ecclesiastical person in any manner with 
the obligation to say certain Masses, or hold other specified eccle- 
siastical functions, or perform some works of piety or charity 
perpetually or for an extended period in return for the revenue 
of the goods. The foundation when legitimately accepted has the 
nature of a bilateral contract—‘do ut facias’’—hbinding on both 
parties (Canon 1544). 

1538. It is the right of the local Ordinary to prescribe the 
regulations regarding the limits below which a pious foundation 
cannot be accepted and the proper distribution of the income 
from the endowment (Canon 1545). The written consent of the 


83 Collectanea de Prop. Fide, IT, n. 1393. 
‘4 Clark and Marshall, ‘‘The Law of Crimes’? (2nd ed.), 723, 


194 A PRACTICAL COMMENTARY 


local Ordinary is required for the acceptance of such a founda- 
tion by a legal ecclesiastical person; the Ordinary shall not give 
his consent until he has ascertained that the legal person can 
satisfy the obligation of the new foundation as well as of those 
already undertaken. He shall especially see that the income from 
the foundation corresponds fully to the imposed obligations, 
according to the custom of the respective diocese. The patron 
of a church has no right to interfere in the accepting, consti- 
tuting and administration of the foundation (Canon 1546). 

1539. Money and movable goods given for the endowment of 
a foundation shall be deposited immediately in a safe place to be 
designated by the local Ordinary, and kept there until they can 
be safely and profitably invested. The investment is to be made 
according to the good judgment of the Ordinary, after he has 
consulted both the interested parties and the diocesan board of 
administration, and shall be made in favor of the foundation, 
the Ordinary enumerating explicitly and individually the obli- 
gations attached to the foundation (Canon 1547). 

1540. Foundations, though made orally, shall be put in 
writing. One copy of the agreement (called the tabule funda- 
tionts) shall be kept in the diocesan archives, and another in the 
archives of the legal person which the foundation concerns 
(Canon 1548). Besides observing the regulations of Canons 
1514-1517 and 1525, every church which has a foundation shall 
prepare a list of the obligations imposed, and this list shall be 
kept by the rector in a safe place. Besides the book mentioned 
in Canon 843 (for manual stipends), another book must be kept 
in which the rector shall enter each and all perpetual and tem- 
porary obligations, their fulfillment and the stipends paid, so 
that an exact account of all these details may be given to the local 
Ordinary (Canon 1549). 

1541. In the case of pious foundations in the churches of 
exempt religious (even parochial churches), the rights and duties 
of the local Ordinary, as defined in Canons 1545-1549, pertain 
exclusively to the major religious superior (Canon 1550). 

1542. The reduction of obligations attached to pious founda- 
tions is reserved exclusively to the Holy See, unless the document 
of foundation explicitly states otherwise (i.e., gives the Ordinary 
certain specified powers to reduce the obligations) ; the Masses, 
however, can never be reduced without permission of the Holy 


# 


CANONS 1546-1551 195 


See (cfr. Canon 1517). The indult to reduce foundation Masses 
does not extend to other Masses due by contract or to the other 
works of the pious foundation. A general indult to reduce the 
obligations of pious foundations must be understood in the sense 
that the person possessing the indult shall, unless the contrary 
1S apparent, reduce other obligations rather than the Masses 
(Canon 1551). 

Pious foundations are not very common in the United States. 
If a man sets aside a certain amount of money or other personal 
or real property to be given to a church or an ecclesiastical insti- 
tution with the agreement that the ecclesiastical person shall have 
a certain number of Masses said or other divine services held 
annually (the income from the fund or other property serving 
as a stipend for such services), and if that agreement is to last 
for all time or for forty or more years, a pious foundation is 
thereby constituted. Such an offer cannot be accepted by a 
pastor, rector, religious superior, or other heads of churches and 
ecclesiastical institutions without the consent of the Ordinary of 
the diocese—or of the major superior of the religious organiza- 
tion, if the foundation is offered to a church or house of exempt 
religious. The stipulations made in the document by which the 
foundation is established are called in Canon Law tabule (or 
leges) fundations. 

1543. The income from the endowment of the foundation may 
decrease in the course of time through no fault of the church 
which acts as administrator, and the obligations may thus 
become entirely disproportionate to the stipends. In such a 
case Canon 1851 permits the application of Canon 1517, which 
gives the Ordinary power to reduce the obligations attached 
to pious bequests, if in the course of time the stipend appointed 
for the divine services has greatly depreciated. Ordinaries 
have no power to reduce the number of Masses, unless the 
document which establishes the foundation expressly states so.?° 
If the fund or property is entirely lost through no fault of 
the ecclesiastical person who held its administration, canonists 
of the old Canon Law held that the obligations attached to 
the foundation ceased.*®° That the obligations (even foundation 
Masses) were suspended for the time that the endowment did 


35 July 14, 1922 (Acta Ap. Sedis, XIV, 529). 
36 Gasparri, ‘‘De SS. Eucharistia,’’ I, n. 588. 


196 A PRACTICAL COMMENTARY 


not produce any interest or revenue, had been already declared 
by the Sacred Congregation of the Council.’? 

Some commentators on the Code (e.g., Vermeersch-Creusen 
and Cocchi) ** hold that, if the fund or property of the founda- 
tion perishes through no fault of its holder, the obligations of 
the foundation cease. They thus follow the old canonists. It 
seems, however, that the Code does not allow the cessation 
of the obligations of Masses attached to a foundation. The 
only kind of a reduction of the obligations of foundations which 
the Code permits (in Canon 1551) is the reduction mentioned 
in Canon 1517: if the fund or property is partially lost or the 
interest from the fund decreases for any other reason (without 
the fault of the administrators), obligations may be reduced 
by the Ordinary with the exception of the obligation of Masses. 
It seems, therefore, that one must apply to the Holy See in 
such cases to get a reduction of the foundation Masses. 

1544. The faculties which the Bishops in the United States 
receive from the Sacred Congregation of the Council, give them 
the power to reduce the number of perpetual foundation Masses 
because of diminished revenues to the extent that the celebrant 
of the Masses may get that stipend which is the usual legitimate 
stipend in the diocese. The bishop may make use of this faculty 
only in cases where there is nobody who is bound and ean be 
foreed by law to supply the deficiency of the revenue of the 
foundation. The priests who say these Masses must inform the 
diocesan Curia each year of the fulfillment of the obligation. 
The Bishops have received the further faculty from the same 
Sacred Congregation to transfer within the diocese the founda- 
tion Masses to days, churches and altars other than those speci- 
fied in the document by which the foundation was established. 
The general rule is, as we saw, that the Holy See only is com- 
petent to change the stipulations of a foundation. 


37 Benedictus XIV, ‘‘De Synodo Diwcesana,’’ lib. XIII, cap. ult., nn. 
34-35. 
38 Epitome, II, n. 836; Commentariwm, VI, n. 232. 





THe FourTH Book 
OF CANONICAL TRIALS 


PART ONE 
OF ORDINARY TRIALS 


1545. The fourth book of the Code is divided into three 
parts: the first outlines the procedure at ordinary trials in the 
ecclesiastical court; the second treats of the procedure in beatifi- 
cations and canonizations; the third deals with the formalities 
to be observed in the removal and transfer of pastors, in pro- 
ceedings against clerics breaking the law of residence, clerics 
living in concubinage, pastors who neglect their pastoral duties 
and of the suspension ex informata conscientia. 


CIVIL AND CRIMINAL TRIALS 


1546. By the term ‘‘ecclesiastical trial’’ is meant the legal 
discussion and settlement before an ecclesiastical tribunal of a 
controversy in an affair over which the Church has the right 
to judge. The subject matter of canonical trials are: 

(1) the prosecution or vindication of the rights of physical 
or moral persons, or the declaration of the juridical facts con- 
cerning such persons (e.g., the validity of ordination, of mar- 
riage, etc.). These are called civil trials; 

(2) offenses with a view to inflicting or declaring a penalty. 
These are called criminal trials (Canon 1552). 

For ‘‘civil trials,’? the Code uses the term judiciwm con- 
tentiosum (a trial at which rights are contested). 


197 


198 A PRACTICAL COMMENTARY 


Cases SuBJEcT To EccLESIASTICAL TRIAL 


1547. The Church has the inherent and exclusive right to 
judge: 

(1) cases which relate to spiritual matters, or to temporal 
matters annexed to spiritual ; 

(2) violations of ecclesiastical laws, and all other actions in 
which sin is implicated, in so far as the decision on the guilt 
and the infliction of ecclesiastical penalties are concerned ; 1 

(3) all civil and criminal cases of persons who enjoy the 
privilege of the ecclesiastical forum, as defined by Canons 120, 
614, and 680. 

In those cases in which the civil courts have concurrent 
jurisdiction with the ecclesiastical ecourts—the so-called eases of 
the mixed forum—prevention holds good, that is, whichever 
court first accepts the complaint or prosecutes the offender, has 
the right to judge the case (Canon 1553). The plaintiff who 
takes a case of the mixed forum to the secular court after it 
had been brought before an ecclesiastical judge, may be pun- 
ished in the manner specified in Canon 2222, and he forfcits 
the right to bring action in the ecclesiastical forum against 
the same person in the same ease or in another matter con- 
nected with that case (Canon 1554). 


Courts wHicH ArE Bounp to FoLLow THE PROCEDURAL LAW 
OF THE CODE 


1548. The tribunal of the Congregation of the Holy Office 
proceeds according to its own laws and customs, and also the 
inferior tribunals must follow the norms given by the Holy 
Office in matters pertaining to the tribunal of that Sacred 
Congregation. Other tribunals must observe the laws pre- 
scribed in the succeeding Canons.? In the trial for the dis- 
missal of religious the precepts of Canons 654-668 are to be 
observed (Canon 1555). 


1Cfr. the words of Pope Innocent III in the Deeretals: ‘*No sane 
person is ignorant of the fact that it pertains to our office to punish every 
Christian for any mortal sin’’ (Decretales Greg. IX, ¢. 13, De Judiciis, 
Mier lise ede bs 

2 Ordo Servandus in Romana Curia, Norme peculiares, cap. VII (Acta 
Ap. Sedis, I, 78-81). 


CANONS 1553-1557 199 


Section I 


OF TRIALS IN GENERAL 


TITLE I 


OF THE COMPETENT FORUM 


1549. The Primatial See can be judged by no one (Canon 
1556). The Supreme Pontiff has the highest legislative, ad- 
ministrative and judicial power in the Church. The Code 
states that the Roman Pontiff cannot be brought to trial by 
anyone. The very idea of the trial of a person supposes that 
the court conducting the trial has jurisdiction over the person, 
but the Pope has no superior, wherefore no court has power 
to subject him to judicial trial. 


CASES RESERVED TO THE Houy SEE 


1550. The Roman Pontiff has the exclusive right to judge 
the cases of the following persons: 

(1) those who hold the highest governmental rank in a 
nation, their sons and daughters, and those who have the im- 
mediate right of succession; 

(2) Cardinals; 

(3) Legates of the Apostolic See, and in criminal cases 
Bishops, even titular ones (Canon 1557, § 1). 

To the Tribunals of the Apostolic See is reserved the judg- 
ment over: 

(1) residential bishops in civil cases, with the exception of 
the cases mentioned in Canon 1572; 

(2) dioceses and other legal ecclesiastical persons who have 
no superior below the Supreme Pontiff (e.g., exempt religious 
organizations, Monastic Congregations, ete.). 

Other eases which the Roman Pontiff has cited to his tri- 
bunal shall be judged by the judge whom the Roman Pontiff 
himself shall have appointed (Canon 1557, § 2). 

The cases spoken of in Canons 1556-1557 are reserved in 


200 A PRACTICAL COMMENTARY 


such a manner that the incompetency of all other judges is 
absolute (Canon 1558). 

1551. Nobody can be sued in the first instance, except before 
an ecclesiastical judge who is competent by reason of one of 
the titles specified in Canons 1560-1568. The incompetency of a 
judge who has none of these titles is called relative. The plain- 
tiff follows the forum of the defendant; if the defendant has 
various courts that are competent in the case, the plaintiff has 
the right to choose between the courts (Canon 1559). 


NECESSARY Forum 


1552. The following cases or actions have a necessary forum: 

(1) actions de spolio (that is, to regain possession or quasi- 
possession of property or property rights of which one was 
wrongfully deprived either by force or secretly, efr. Canon 
1698) must be brought before the local Ordinary where the 
property is located ; 

(2) cases concerning a benefice, though not a residential one, 
must be tried before the local Ordinary where the benefice exists ; 

(3) cases concerning administration must be tried before the 
local Ordinary in whose territory the administration was con- 
ducted ; 

(4) cases concerning hereditaments or legacies for pious 
causes must be tried before the local Ordinary of the domicile 
of the testator, except when there is question merely of the 
execution of a legacy, which is to be settled according to the 
ordinary rules of competency (Canon 1560). 


ORDINARY Forum 


1553. Every person can be sued before the local Ordinary 
of the territory in which he hag a domicile or quasi-domicile. 
The Ordinary of the domicile or quasi-domicile has jurisdic- 
tion over his subject, even though the latter is absent from 
the diocese (Canon 1561). By domicile or quasi-domicile one 
becomes subject to the local Ordinary (cfr. Canon 94), and 
consequently, though a subject be actually absent from the 
diocese, he can be cited before this Ordinary’s tribunal in all 
cases except those reserved to the Holy See or those which 


CANONS 1558-1565 201 


have a necessary forum. There are special regulations for 
determining the competent forum in marriage eases (cfr. 
Canons 1960-1965) and for the rest of the procedure in those 
eases (cfr. Canons 1966-1992). 

1554. A stranger in the city of Rome, though staying there 
only for a short time, can be summoned in that city just as in 
his own domicile; he has, however, the right to have his case 
tried in the place of his home (i.e., he may request that the 
case be referred to his proper Ordinary). If a person has 
stayed in the city of Rome for a year, he has the right to decline 
the forum of his Ordinary, and to insist that he be summoned 
before the tribunals of Rome (Canon 1562). 

1555. A vagus (i.e., a person who has nowhere a domicile 
or quasi-domicile) has his proper forum in the place where he 
actually stays. A religious has his proper forum in the place 
where the religious house to which he belongs is located (Canon 
1563). 

1556. In virtue of the. location of the thing about which 
there is controversy, a party can be summoned to appear before 
the local Ordinary of the place where the thing is located, 
whenever the suit is brought directly against the thing itself 
(Canon 1564). This would occur in a replevin suit or a suit 
to quiet title. If it is an action de spolio, Canon 1560 makes 
the place of the location of the property the necessary forum. 
If the defendant in a suit in rem does not answer the sum- 
mons of the Ordinary of the place where the thing is located, 
he cannot be forced by ecclesiastical penalties to appear, if he 
resides in another diocese, but the trial proceeds and the judge 
can, if he believes that the plaintiff proved his case, award him 
possession or ownership (as the case may be) of the thing in 
controversy, and he can enforce his sentence against the de- 
fendant if he interferes with the execution of the sentence. 

1557. By reason of a contract, a party can be sued before 
the local Ordinary of the place where the contract was made 
or must be executed. At the time when the contract is made 
the contracting parties are allowed to choose a place in which 
they can be summoned and sued, even though they be absent 
from the place, if questions arise as to the interpretation of the 
obligation, or as to the urging or fulfillment of the obligation 
(Canon 1565). 


202 A PRACTICAL COMMENTARY 


As the contract may be made in one place, and may have 
to be executed in another place, two Ordinaries of different 
dioceses might be competent in a suit on the contract. A 
stranger can be sued on the contract only if he is actually in 
the place of contract when the summons is served on him.® 
If the contracting parties stipulate the diocese in which suit 
on the contract is to be brought, they are free to choose any 
diocese, and the parties are bound to answer the summons of 
that court, though they are absent from the territory of that 
diocese. The court of the diocese where the defendant has a 
domicile or quasi-domicile, has concurrent jurisdiction in suits 
on the contract. 

1558. Because of an offense, the accused party becomes sub- 
ject to the forum of the place where the offense was com- 
mitted. Though the accused party has left the place after 
committing the offense, the judge of that place has the right 
to summon him to court and to pronounce the sentence in his 
case (Canon 1566). The local Ordinary of domicile or quasi- 
domicile has concurrent jurisdiction. 

1559. By reason of connection or content, all interrelated 
cases (e.g., a criminal action and an action for damage caused 
by the crime) are to be tried by the same judge, unless some 
rule of law stands in the way—e.g., if one case has a necessary 
forum (Canon 1567). 

1560. By reason of prevention, when two or more judges 
are equally competent, that judge has the right to try the case 
who first issued the summons to the defendant and thus legiti- 
mately cited him to his tribunal (Canon 1568). If it is doubt- 
ful what court is entitled to try a case, the archbishop’s court 
decides the question of competency, when both courts belong 
to the same ecclesiastical province; when they belong to dif- 
ferent provinces, the metropolitan of the judge to whom the 
case was first brought shall decide; if the courts have no 
immediately superior court (e.g., some diocese which stands 
directly under the Holy See), the Papal Legate, if there is one, 
or otherwise the Signatura Apostolica decides the competency 
(efr. Canon 1612). 


3 Lega, ‘‘De Judiciis Ecclesiasticis,’’?’ I (2nd ed.), n. 341. 


CANONS 1566-1571 203 


TITLE II 


OF THE VARIOUS DEGREES AND SPECIES OF 
TRIBUNALS 


1561. In view of the primacy of the Roman Pontiff, any 
member of the faithful in the whole world may appeal his case to 
the Holy See—whether the case be civil or criminal and at any 
stage whatsoever of the procedure (first instance or court of ap- 
peal, at the beginning of the trial or any other stage )—or may take 
it there in the first place. However, the recourse to the Holy See 
does not suspend, except in a case of appeal, the exercise of juris- 
diction by the judge who has already begun the trial of the case. 
He may continue the case and pronounce final sentence, unless it 
is known that the Apostolic See has reserved the case to itself 
(Canon 1569). It is evident that the Supreme Pontiff has the 
right to judge any case of any subject of the Catholic Church 
in matters which are under the jurisdiction of the Church, 
beeause the Pope has supreme legislative, administrative and 
judicial power over the whole Church. However, since there 
are ordinary judges appointed by law, it is evidently not the 
intention of the Supreme Pontiff who made that law to inter- 
fere with the jurisdiction of the ordinary judges, unless there 
are special reasons which in the judgment of the Holy See 
make it advisable to try the case at the Supreme Pontiff’s 
Tribunal.* 

1562. With the exception of the cases reserved to the Apos- 
tolic See, or the cases which it has summoned to its own tri- 
bunal, all others are to be tried by the various tribunals spoken 
of in Canons 1572 sqq. Every tribunal has the right to call 
upon another tribunal for the examination or summons of the 
parties and the witnesses, the inspection of documents or of 
the thing in controversy, notification of court orders, and the 
like, and the tribunal called upon must observe the precepts 
of law for each of these acts (Canon 1570). The judge who 
tries the case in one stage of the trial cannot try the same case 
in another instance (Canon 1571). 

As the same judge is absolutely incompetent to try the case 


4 Kichmann, ‘‘Prozessrecht des Cod. Jur, Can.’’ (Paderborn, 1921), 49. 


204 A PRACTICAL COMMENTARY 


in the second instance, all appeals are addressed to the higher 
court. There is no appeal from the sentence of the Offcialis 
or diocesan judge to the Ordinary, because the Officialis forms 
one and the same tribunal with the Ordinary. If one attacks 
the sentence of the court because of the invalidity of the sen- 
tence, the complaint is made to the judge who issued the sen- 
tence, and he can again try the case. However, if one fears 
that the judge’s mind is prejudiced, one can ask that another 
judge be appointed to try the case in the same court. If the 
complaint of invalidity is combined with an appeal, the ease 
goes to the higher court (cfr. Canons 1892-1897). 


CHAPTER I 
OF THE ORDINARY TRIBUNAL OF THE FIRST INSTANCE 


ARTICLE I.—OF THE JUDGE 


1563. In every diocese and for all cases not expressly ex- 
cepted by law, the local Ordinary is the judge of the first in- 
stance, and can exercise the judiciary power either in person 
or through others, according to the following Canons. If the 
rights or the temporal goods of the bishop, or of the mensa 
episcopalis, or of the diocesan Curia are involved, the case should 
either be referred, with the consent of the bishop, to a tribunal 
of three judges of the diocese, consisting of the judge of the 
Curia and two of the older synodal judges, or carried to the im- 
mediately higher court (Canon 1572). 

In cases in which the bishop is personally interested, he 
cannot be judge. If the bishop consents and the party bring- 
ing the suit is satisfied, a diocesan tribunal of the three judges 
specified in Canon 1572 may try the case; otherwise, the case 
goes to the next higher court, which, in the case of a suffragan 
bishop, is the archbishop’s court; in the ease of an archbishop, 
to that diocesan court which has been once for all chosen by 
the archbishop with the approval of the Holy See (efr, Canon 
1594). 





CANONS 1572-1575 205 


Tue ‘‘OFFICIALIS’’ OR DIOCESAN JUDGE 


1564. Every bishop is bound to appoint an Officialis, or 
diocesan judge, with ordinary power to judge; he should be 
distinct from the vicar-general, unless the smallness of the dio- 
eese or the small amount of business makes it preferable to 
entrust this office to the vicar-general. The diocesan judge 
constitutes one tribunal with the bishop of the diocese, but he 
cannot try cases which the bishop reserves to himself. Assistants 
may be assigned to the diocesan judge with the title of Vice- 
oficiales. Both the Officialis and the Vice-officiales must be 
priests of irreproachable reputation, must possess the degree of 
Doctor of Canon Law or a thorough knowledge of the same, 
and must be at least thirty years of age. They may be removed 
at will by the bishop. During the vacancy of the bishopric 
_ their office does not cease, nor can they be removed by the 
vicar-capitular (or the diocesan administrator). When the new 
bishop comes into office, their appointment must be confirmed. 
If the vicar-general is at the same time the Officialis, his office 
of vicar-general ceases with the vacancy of the bishopric, but 
the office of Officialis continues. If the Officialis is elected 
vicar-capitular (diocesan administrator), he appoints a new 
Officialis (Canon 1573). 


SYNODAL JUDGES 


1565. In every diocese priests of unblemished character and 
eminent knowledge in Canon Law shall be appointed as Synodal 
Judges, or Pro-Synodal judges, if appointed outside of a dio- 
cesan synod. These judges may be taken even from another 
diocese, and shall be not more than twelve in number; they 
shall take part in the adjudication of cases with power dele- 
gated by the bishop. Their appointment, substitution, loss of 
office, and removal, shall be governed by the rules of Canons 
385-388 (see Volume I, n. 284). In law the pro-synodal judges 
are included under the name of synodal judges (Canon 1574). 


TRIALS BY A SINGLE AND BY SEVERAL JOINT JUDGES 


1566. In every trial conducted by one judge he can employ 
two assessores or councillors, who must be taken from among 
the synodal judges (Canon 1575). 


206 A PRACTICAL COMMENTARY 


The following cases must be tried by several joint judges, 
every contrary custom being disapproved and all contrary privi- 
leges revoked: 

(1) civil (contentiose) cases involving the validity of sacred 
ordination or marriage or regarding the temporal rights and 
goods of the cathedral church, and criminal cases involving the 
deprivation of an irremovable benefice or the infliction or declara- 
tion of excommunication, must be tried by a collegiate tribunal 
of three judges; 

(2) trials in connection with crimes which entail the penalties 
of deposition, perpetual deprivation of the clerical garb, or 
degradation, are reserved to a tribunal of five judges. 

1567. The local Ordinary can commit other cases also to a 
collegiate tribunal of three or five judges, and he should do 
so especially when there is question of cases which seem more 
difficult and of greater importance by reason of circumstances 
of time, place, persons, and subject matter of the trial. The 
two or four judges who, together with the presiding judge, 
constitute the collegiate tribunal, shall be chosen by the Ordi- 
nary from among the synodal judges in rotation, unless he 
thinks it best to deviate from this rule (e.g., by appointing for 
special reasons as judges in a case men who do not belong to 
the synodal judges, or by appointing the synodal judges not 
in rotation) (Canon 1576). 

1568. The tribunal of associate judges must act as a body, 
and pronounce sentence according to the majority vote. The 
Officialis or the Vice-Offcialis presides, and directs the pro- 
cedure and decides what is necessary for the administration of 
Justice in a given case (Canon 1577 y\ 

1569. With the exception of the cases enumerated in Canon 
1572, the bishop may always preside over the tribunal in per- 
son. However, it is highly expedient that the bishop let the. 
cases, especially criminal and more important civil cases, be 
judged by the ordinary tribunal under the presidency of the 
Officialis or Vice-Officialis (Canon 1578). 


CoMPETENT Court ror RELIGIous 


1570. If any controversy arises between religious of the 
same exempt clerical organization, the Provincial Superior— 


CANONS 1576-1581 207 


and, in an autonomous monastery, the abbot—is the judge of 
the first instance, unless the Constitutions rule otherwise. In 
a controversy between two Provinces, the Superior General 
judges the case in the first instance either in person or through 
a delegate, unless the Constitutions prescribe otherwise ; if the 
controversy is between two autonomous monasteries, the abbot 
president of the respective Monastic Congregation is the judge 
(Canon 1579, §§ 1-2). 

1571. If a controversy arises (1) between physical or moral 
persons of different religious organizations, or (2) between 
religious of the same non-exempt organization or a laical com- 
munity, or (3) between a religious and a secular cleric or lay 
person, the local Ordinary is the judge of the first instance 
(Canon 1579, § 3). 

The local Ordinary of the house where the religious is sta- 
tioned by his superior is the competent judge, if the religious 
ig made defendant in a suit brought by a religious of another 
organization, by a secular cleric. or by a lay person; the privi- 
lege of exemption of the religious withdraws the case from the 
tribunal of the local Ordinary in cases only where there is a 
controversy between religious of the same exempt organization. 
Besides the residence of the religious, the other causes which 
make the local Ordinary competent to judge the case have to 
be considered (e.g., the location of the property in dispute, the 
place of contract, the place where an offense was committed, 
etec.). 


ARTICLE I1.—OF AUDITORS AND REFEREES 


1572. The Ordinary can appoint one or several auditors 
(i.e, men who prepare the judicial acts), either permanently 
or for one certain case. The judge can appoint an auditor only 
for the case which he tries, if the Ordinary has not already 
provided one (Canon 1580). The auditors for the diocesan 
tribunal should, as far as possible, be taken from among the 
synodal judges. For the tribunal of religious the auditors must 
always be taken from religious of the same organization accord- 
ing to the regulations of the constitutions (Canon 1581). The 
office of the auditors is to summon the witnesses and to examine 
them, and to draw up the other judicial acts according to the 
tenor of their mandate; they cannot, however, pronounce the 


208 A PRACTICAL COMMENTARY 


final sentence (Canon 1582). An auditor ean be removed from 
office at any stage of the trial by him who appointed him, but 
his removal should be made only for a just reason and without 
prejudice to the parties (Canon 1583). 

1573. The president of a collegiate tribunal must appoint 
one of his associate judges as ponens or referee, who shall report 
on the ease in the meeting of the judges and shall commit the 
Sentence to writing; the president or presiding judge can for a 
just reason appoint another in his place (Canon 1584). 


ARTICLE III.—OF THE NOTARY, PROSECUTOR, DEFENSOR VINCULI 


1574. At every trial there must be present a notary who 
acts as secretary or clerk, and the acts are invalid unless they 
are drawn up by the notary or at least subscribed by him. 
Wherefore, the judge before beginning the trial of a case must 
appoint a secretary or clerk from among the legitimately ap- 
pointed notaries, unless the Ordinary himself: has already 
designated one for that case (Canon 1585). 

1575. A promotor justitiae (prosecutor) and a defensor 
vinculi (defender of the marriage bond and the validity of or- 
dinations) are to be appointed in every diocese. The prosecutor 
appears in civil trials in which the Ordinary believes that publie 
welfare is at stake, and in criminal cases. The defensor vinculi 
appears in cases in which there is question of the validity of 
sacred orders or of marriage (Canon 1586). 

1576. In eases which require the presence of the prosecutor 
or of the defensor vincult, the acts are null and void, if they 
were not summoned, unless they were present without being 
Summoned. If they have been legitimately summoned but were 
not present during some Sessions, the acts are valid, but they 
must absolutely be submitted to them afterwards, in order that 
they may either orally or in writing offer their objections and 
propose whatever they believe is necessary or useful in the ease 
(Canon 1587). 

1977. The same person may hold the office of prosecutor and 
defensor vinculi, unless the great amount of business and of 
eases forbids it. The prosecutor and the defensor vinculi may 
be appointed generally for ‘all cases or for individual cases 
(Canon 1588). The Ordinary has the right to appoint these 


CANONS 1582-1504 209 


officials, who must be priests of unblemished reputation, doctors 
in Canon Law or well versed in it, and of tried prudence and 
zeal for justice. In the court of religious the prosecutor must, 
moreover, be a member of the same organization (Canon 1589). 
The prosecutor and the defensor vinculi who are appointed for 
eases generally do not lose their office at the vacancy of the 
bishopric, nor can they be removed by the vicar-capitular (dio- 
cesan administrator). On the arrival of the new prelate, they 
need confirmation in office. For a just cause they may be 
removed by the bishop (Canon 1590). 


ARTICLE IV.—OF COURIERS AND APPARITORS 


1578. Couriers or messengers shall be constituted, either for 
all trials generally or for an individual case, to give notice of 
the judicial acts, unless the approved custom of a tribunal 
dispenses with these officials. Apparitors (constables) should 
be appointed for the purpose of executing the sentences and 
decrees of the judge at his command. The same person can 
hold both offices (Canon 1591). They should be lay persons, 
unless prudence demands in some special case that clerics be 
appointed to these duties; their nomination, suspension and 
removal shall be governed by the same rules as are given for 
notaries in Canon 373 (Canon 1592). The acts which the 
couriers and apparitors write in the execution of their office, 
are public documents and as such legal proof of the direet 
assertions in these instruments (Canon 1593). 


CHAPTER II 


OF THE ORDINARY TRIBUNAL OF THE SECOND INSTANCE 


1579. An appeal from the court of a suffragan bishop goes 
to the archbishop’s court. Cases which were tried in the first 
instance in the archbishop’s court are appealed to that local 
Ordinary whom the archbishop has designated once for all with 
the approval of the Apostolic See. Cases tried in the first 
instance in the court of an archbishop who has no suffragan 
sees or in the court of a local Ordinary who stands under the 
immediate jurisdiction of the Apostolic See, are appealed to 
the Metropolitan mentioned in Canon 285 (Canon 1594, §§ 1-3). 


210 A PRACTICAL COMMENTARY 


1580. In exempt religious organizations appeal from all 
cases tried before the Provincial Superior goes to the supreme 
head of the organization as the court of the second instance ; 
eases tried by the abbot of an autonomous monastery are 
appealed to the supreme head of the respective monastic con- 
gregation, Cases of religious which are, according to Canon 
1579, § 3, to be tried by the local Ordinary, follow the general 
rules on appeal given in §§ 1-3 of this Canon (Canon 1594, § 4). 

1581. The court of appeal must be constituted in the same 
manner as the court of the first instance, and the same rules, 
adjusted to the procedure of appeal, shall be followed in the 
trial of the case (Canon 1595). If the case in the first instance 
was tried by a collegiate tribunal, it must also in. the court of 
appeal be tried by several judges jointly, who may not be 
fewer in number than in the court of the first instance (Canon 
1596). 


CHAPTER III 


OF THE ORDINARY TRIBUNALS OF THE APOSTOLIC SER 


1582. The Roman Pontiff is the supreme judge for the 
entire Catholic world, as was stated in Canon 1569, who tries 
cases either in person, or through the tribunals constituted by 
him, or through judges delegated by him (Canon 1597). 


ARTICLE I.—OF THE SACRED ROMAN ROTA 


1583. The Sacred Roman Rota is an ordinary tribunal con- 
stituted by the Holy See to receive appeals; it is a collegiate 
tribunal consisting of a certain number of Auditors with a 
Dean as president, who is the first among equals. The Auditors 
must be priests, and must have at least the degree of Doctor 
of Civil and Canon Law. The choice of the Auditors is re- 
served to the Roman Pontiff. The Sacred Rota tries cases either 
in rotation—three Auditors forming one tribunal—or all Audi- 
tors sit together, unless the Supreme Pontiff directs otherwise 
in some case (Canon 1598). 

1584. The Sacred Rota tries: 

(1) in the second instance eases which have been tried in 
the first instance in the courts of any of the Ordinaries and 
have been brought to the Holy See by legitimate appeal ;_ 





CANONS 1594-1602 211 


(2) in the last instance cases which have been tried by the 
same Sacred Rota or in any other courts in the second and 
further instance, and which have not become a res judicata— 
i.e., a case in which there is no further appeal granted in law 
(cfr. Canons 1902-1904). 

The Sacred Rota tries in the first instance the cases men- 
tioned in Canon 1557, § 2, and other cases which the Roman 
Pontiff either by Motu propria or at the request of the parties 
cites to his court and commits to the Sacred Rota. The Sacred 
Rota tries these cases also in the second and third instances by 
rotation of the Auditors or judges, who succeed one another, 
unless the Roman Pontiff orders otherwise in the reseript by 
which he commits the case to this Tribunal (Canon 1599). 
The cause majores (cfr. Canons 220 and 1557, § 1) are abso- 
lutely excluded from the competency of the Sacred Rota (Canon 
1600). 

1585. From the Decrees of the Ordinaries no appeal or 
recourse to the Sacred Rota is granted, and the Sacred Con- 
eregations exclusively take cognizance of such appeals (Canon 
1601). An illustration of this kind of cases is the recent case 
in which the Committee for the Authentic Interpretation of 
the Code ruled that, in administrative acts of the Ordinary 
of a diocese (e.g., the conferring of benefices, offices, refusal 
to grant a benefice, office, etc.), no appeal or recourse to the 
Sacred Rota is possible. Not only is it forbidden to sue before 
the Sacred Rota to obtain a benefice or office, which the Ordi- 
nary refuses and to which one claims to have a right, but it Is 
also forbidden to sue before that court for the purpose of 
getting damages which one has suffered by the refusal of the 
Ordinary.° 


ARTICLE IIl.—OF THE SIGNATURA APOSTOLICA 


1586. The Supreme Tribunal of the Signatura Apostolica 
consists of several Cardinals, of whom one acts in the capacity 
of Prefect (Canon 1602). 

The Signatura Apostolica has ordinary power to try the 
following cases: 

(1) regarding the violation of the secret by a judge of the 


5 May 23, 1923 (Acta Ap. Sedis, XVI, 251). 


212 A PRACTICAL COMMENTARY 


Sacred Rota and regarding damages done by the judges of 
the Sacred Rota through invalid or unjust. acts; 

(2) regarding the plea of suspicion against one of the Audi- 
tors or judges of the Sacred Rota; 

(3) regarding the plea of nullity against a sentence of the 
Sacred Rota; 

(4) regarding the petition for the restitutio in integrum 
against a sentence of the Sacred Rota which has become a res 
judicata; 

(5) regarding the recourses against sentences of the Sacred 
Rota in matrimonial cases which the Sacred Rota refused to 
admit to a new trial; 

(6) regarding disputes over competency which may arise 


between inferior tribunals, according to the rule of Canon 1612. 


The Signatura Apostolica has delegated power to pass on 
the petitions offered to the Supreme Pontiff to obtain the com- 
mitment of a case to the Sacred Rota (Canon 1603). 

The tribunal of the Signatura Apostolica is the supreme 
court of the Church. The date of the origin of this tribunal 
is not known. From ancient times there were two departments 
of the Signatura, one called the Signatura Gratie and the other 
Signatura Justitie. The first dealt with dispensations, privi- 
leges, and exemptions requested from the Holy See; the other 
with judicial trials. The two departments were not separated 
from each other until 1492, when Pope Alexander VI divided 
the Signatura Apostolica into two distinct branches. The ju- 
diciary branch became an ordinary tribunal for trying cases and 
issuing sentences in the name of the Supreme Pontiff. Before 
the Supreme Pontiff was deprived of the temporal power over 
the Papal States, the Signatura Apostolica had farreaching 
power over the cases tried in‘the secular courts of the Papal 
dominions, together with its authority over ecclesiastical courts. 
In the course of the nineteenth century the Signatura gradually 
ceased to function, The Roman Rota at about the same time 
(after the reign of Pope Gregory XVI) also became extinct, 
and the cases appealed to the Holy See from other courts were 
decided by the various Sacred Congregations. In 1908 while 
the codification of the laws of the Church was in progress, Pope 
Pius X reorganized the entire Roman Curia (i.e., the Sacred 
Congregations, Offices and Tribunals), and reinstated the two 


CANONS 1603-1604 213 


courts of the Holy Sce, the Roman Rota and the. Signatura 
Apostolica. 

Not all cases appealed from inferior courts to the Holy See 
ean go to the Signatura Apostolica. Canon 1603 defines the 
extent of the ordinary jurisdiction of the Signatura Apostolica, 
and from it is evident that the Supreme Tribunal is not a 
reeular court of appeal. The Roman Rota has both appellate , 
and original jurisdiction (cfr. Canon 1599). The cases men- 
tioned in Canon 1557, § 2, come under the original jurisdiction 
of the court of the Roman Rota, and are tried there in the first 
instance; as a court of appeal, the Roman Rota has jurisdiction 
to try cases which have been tried in the first instance in the 
court of any Ordinary (cfr. 1599, n. 1), having concurrent 
appellate jurisdiction with the ordinary court of appeal, 1e., 
the archbishop’s court (cfr. Canon 1569 concerning the right 
of appeal to the Holy See). 

1587. In criminal cases against a judge of the Sacred Rota 
(cfr. Canon 1603, n. 1), if there is question of a trial in appeal, 
that trial is to be conducted by the Signatura Apostolica. In 
the plea of suspicion against a judge of the Sacred Rota, the 
Signatura Apostolica decides whether the judge of the Sacred 
Rota is to be removed from the trial of the case. This being 
done, the case is returned to the Sacred Rota, which proceeds 
with it according to its ordinary rules, except that the judge 
against whom suspicion was raised is excluded from or partici- 
pates in the consideration of the case, according as the Signa- 
tura Apostolica may have decreed. In the plea of nullity, the 
petition for the restitutio in integrum, or the recourse against 
sentences of the Sacred Rota in matrimonial cases (cfr. Canon 
1603, nn. 3-5), the Signatura Apostolica decides only whether 
the sentence of the Sacred Rota is invalid, and whether the 
restitutio in integrum or the recourse should be admitted: if 
the sentence is declared invalid, or if the petition or recourse is 
admitted, the Signatura Apostolica remands the case to the 
Sacred Rota, unless the Supreme Pontiff provides otherwise. 
In the petition to the Holy See that a case may be committed 
to the Sacred Rota, the Signatura Apostolica after having ob- 
tained the proper information and having heard the interested 
parties, decides whether the petition is to be granted or refused 
(Canon 1604). 


214 A PRACTICAL COMMENTARY 


1588. The sentences of the Supreme Tribunal of the Signa- 
tura Apostolica are effective, even though they do not contain 
the reasons in fact or in law (cfr. Canon 1894). Nevertheless, 
at the request of either party to the trial or, if it seems advis- 
able, ex officio, this Supreme Tribunal may direct that the rea- 
sons for the sentence be published according to the proper 
regulations of this Tribunal (Canon 1605). The lex propria of 
the Signatura Apostolica is contained in the Constitution ‘‘Sapi- 
enti Consilio’’ of Pope Pius X, by which the Roman Curia was 
reorganized.,® 


CHAPTER IV 
OF THE DELEGATED TRIBUNAL 


1589. Delegated judges are bound to observe the rules con- 
tained in Canons 199-207 and 209 (Canon 1606). The judge 
delegated by the Holy See may employ the officials of the Curia 
of the diocese in which he must try a case. He may also choose 
and employ any others, if he prefers, unless the rescript of 
delegation states otherwise. The Judges delegated by the local 
Ordinaries must employ the officials of the diocesan Curia, unless 
the bishop for a serious reason orders that special extraordinary 
officials are to be appointed in some individual case (Canon 
1607). 

Persons who possess ordinary judicial power—e.g., the local 
Ordinary and the judge (officialis) of the diocesan Curia—can 
delegate to any priest jurisdiction either over all the cases in 
which his tribunal is competent, or over all cases of a certain 
kind, or for individual trials. The delegated judge who has 
been appointed with general faculty to try all cases, or all cases 
of a certain kind (eg., matrimonial cases), can subdelegate 
another as judge for individual cases. A judge delegated by 
the Apostolic See—i.e., the Roman Pontiff, or the Roman Rota 
or Signatura Apostolica (cfr. Canon 7 )—though he is delegate 
for one case only, can subdelegate another as judge, unless the 
tenor of the document of delegation declares that the person 
was delegated because of his special aptitude to act as judge in 
the case. Noval (‘‘Commentarium Cod. Jur. Can.,’’ De judiciis, 
n. 182) is of the opinion that the clauses of the rescript—‘‘de 


6 June 29, 1908 (Acta Ap. Sedis, I, 20-29). 

















CANONS 1605-1609 215 


tua industria, et circumspectione confidentes: prudentix tue 
de qua specialiter confidimus’’—do not indicate that the delegate 
is chosen for reason of special qualifications, but are rather gen- 
eral expressions of politeness in the form of the mandate. This 
seems to be a correct interpretation of these phrases, though, as 
Noval remarks, there are canonists who see in these phrases an 
indication that the delegate was chosen for reason of personal 
qualities, and that he cannot subdelegate his commission to an- 
other. If several men are delegated to act as judges in a body 
(collegialiter) and one of them dies, all lose their jurisdiction 
unless the document of delegation provides for this emergency. 
The jurisdiction of a delegated judge expires with the expira- 
tion of the office of the authority who delegated him, if at the 
death, resignation, transfer, ete., of the authority the summons 
have not yet been issued or the parties have not of their own 
accord presented themselves to the judge prior to the loss of 
office of the delegating authority (cfr. Canon 1725; Hichmann, 
‘*Prozessrecht,’’ 67). 


TITLE III 


OF THE RULES TO BE OBSERVED BY THE COURTS 


CHAPTER I 


OF THE OFFICE OF THE JUDGES AND COURT OFFICIALS 


1590. The competent judge shall not refuse his services to 
a party who legitimately applies to him, subject to the penalties 
ordained by Canon 1625 (Canon 1608). Before a judge sum- 
mons anybody before his tribunal and sits in judgment, he shall 
see whether he is competent. In like manner, before he admits 
a plaintiff to plead his case, he is bound to ascertain whether 
the plaintiff has a right in law to sue. It is not necessary that 
this investigation of the judge be entered into the minutes of 
the case (Canon 1609). 3 

1591. If exception is taken to the competency of the judge, 
the judge himself must decide this question. In case of ex- 
ception being taken to his relative incompetency, the judge’s 
decision in favor of his competency does not admit of appeal. 


216 A PRACTICAL COMMENTARY 


If the judge declares himself incompetent, the party who regards 
himself as aggrieved may within ten days take an appeal to the 
higher court (Canon 1610). The judge who at any stage of 
the trial finds himself absolutely incompetent is bound to declare 
his incompetency (Canon 1611). 

The judge to whom a party has recourse for the vindication 
of his rights or the redress of injuries suffered through unlaw- 
ful actions of others, is obliged in virtue of his office: (1) to 
examine whether he has jurisdiction to try the case, and (2) 
whether the party has a right to sue. The incompetenecy of a 
judge may be either absolute or relative. There are a few cases 
only in which judges inferior to the Holy See are absolutely in. 
competent, and these are stated in Canons 1556-1557; in other 
cases the incompetency is relative (cfr. Canons 1558-1568). If, 
in a case of relative incompetency, the defendant raises objection 
to the right of the judge to try the case, the judge himself investi- 
gates whether he has jurisdiction to try the case and, if he de- 
clares himself competent, the law does not permit appeal from his 
decision, If he declares himself incompetent and therefore re- 
fuses to try the case, the party who thinks himself incommoded 
by that decision may appeal to the higher court within ten days 
to obtain the decision of that court on the competency of the 
judge. 

1592. If a controversy arises between two or more judges as 
to which of them is competent in some affair, the matter shall be 
decided by the immediately higher tribunal. If the judges be- 
tween whom there is a conflict. of competency are subject to 
different higher tribunals, the decision of the controversy is 
reserved to the higher tribunal of that judge to whom the ease 
was first taken. If the judges have no higher court, the con- 
flict is to be settled either by the Legate of the Holy See, if 
there is one, or by the Signatura Apostolica (Canon 1612). 

1593. A judge should not accept for trial a case in which 
he is to some extent interested by reason of consanguinity or 
affinity in any degree of the direct line or in the first or second 
degree of the collateral line, or as a guardian or trustee of one 
of the parties, or as an intimate friend or an enemy, or because 
he has much to gain or lose through the ease, or has in the 
Same matter been advocate or procurator for one of the parties. 
Under the same circumstances the prosecutor and the defensor 


a 


CANONS 1610-1617 217 


vinculi must likewise refrain from acting in the case (Canon 
1613). 

1594. When a plea of suspicion is entered against a judge, 
although his competence in the case is admitted, and this ex- 
ception is taken against the single delegated judge or against 
the tribunal or the majority of the delegated judges, the person 
who delegates the judge or tribunal shall decide whether the 
objection is to be sustained. If the exception of suspicion is 
entered against one or other of several delegated judges (even 
the presiding judge), the other delegated judges rule on the 
objection. If the exception is taken against an Auditor of the 
Sacred Rota, the Signatura Apostolica rules on the objection, 
as stated by Canon 1603, n. 2; if against the Officialis (judge of 
the diocesan Curia), the bishop; if against an auditor (assistant 
or secretary of a judge), the principal judge rules on the objec- 
tion (Canon 1614, § 1). 

1595. If the Ordinary himself tries a case and the exception 
of suspicion is entered against him, he should either abstain from 
trying the case or commit the ruling on the question of sus- 
picion to the immediately higher judge. If the exception of 
suspicion is entered against the prosecutor or the defensor um- 
culi, or against other officials of the court, the presiding judge 
of the tribunal or the judge, if one only tries the case shall 
rule on the objection (Canon 1614, §§ 2-3). 

1596. If the one judge who tries a case, or one or all the 
judges of a collegiate tribunal, have been declared suspect, the 
judges must be changed, but the case stays in the same court. 
The Ordinary must appoint other acceptable judges in place 
of those who were declared suspected. If the Ordinary himself 
has been declared suspect, the immediately higher judge shall 
appoint other judges to try the case (Canon 1615). The excep- 
tion of suspicion must be decided as expeditiously as possible 
after hearing the parties and also the prosecutor or defensor 
vinculi, if the latter are interested in the case and no objection 
has been entered against them (Canon 1616). With regard to 
the time within which the exceptions of incompetence and of 
suspicion must be raised, the precepts of Canon 1628 shall be 
observed (Canon 1617). 

1597. In an affair which pertains to private persons only, 
the judge cannot interfere except at the request of one party. 


218 A PRACTICAL COMMENTARY 


In offenses, however, and in matters concerning the public weal 
of the Church or the salvation of souls, the judge can proceed 
ex officio (Canon 1618). 

1598. If the plaintiff in a private suit does not offer proofs 
in his favor which may properly be urged, or if the defendant 
does not plead proper exceptions, the judge shall not supply 
the deficiencies. If, however, the public welfare or the salvation 
ot souls is involved, the judge may and must supply the deficien- 
cies in pleading (Canon 1619). In private affairs the parties 
who call upon the court to settle their difficulties and determine 
their rights, must plead and defend their claims; the court is 
disinterested, and in fact it would rather that they settle their 
disagreement out of court. The court is not to take an active 
part in the dispute by helping the parties to prove or defend 
their case. An exception is made in favor of minors and other 
persons whom the law holds equivalent to minors, since the 
judge may assist these to plead or defend their ease (cfr. Canon 
1759). In cases involving the good of souls or the public welfare 
(e.g., all criminal cases concern the public welfare), the court is 
interested in getting all the proofs of the plaintiff as well as the 
full defence of the defendant. 

1599. The judges and courts shall endeavor to finish all cases 
as speedily as possible, without prejudice to justice. Cases shall 
not be protracted in the court of the first instance over two years, 
or in the court of second instance over one year (Canon 1620). 


THE ADMINISTERING OF OATHS 


1600. Except the bishop when he sits in person as judge, 
all persons who constitute or assist a tribunal must take an oath 
before the Ordinary or the judge by whom they are chosen, or 
before an ecclesiastic delegated either by the Ordinary or the 
judge, that they will fulfill their office properly and faithfully. 
The oath is to be taken at the beginning of their office, if they 
are regular officials, or before the beginning of the trial, if they 
were appointed for one particular case only. Even a judge 
delegated by the Apostolic See and the ordinary judge in an 
exempt clerical religious organization are bound to take the 
oath when the tribunal is first constituted; the notary of the 
tribunal shall assist at the taking of the oath and make record 
of it (Canon 1621). 








CANONS 1618-1624 219 


1601. Whenever the oath is taken either by the judges, or 
the officials of the court, or the litigants, witnesses, or experts, 
it must always be taken under the invocation of the Divine 
Name, priests meanwhile touching their breasts and laymen 
touching the Book of the Gospels. In administering the oath 
to the litigants, witnesses and experts, the judge shall regularly 
remind them of the sacredness of the act, of the very serious 
nature of the crime of perjury, and of the penalties to which 
one becomes liable who, after being sworn, tells a falsehood in 
court. The oath shall be taken according to a formula approved 
by the judge, shall be taken in the presence of this judge or 
his delegate, and in the presence of both or either of the parties, 
if they desire to be present when the oath is tendered (Canon 
1622). 

1602. In criminal cases the judges and officials of the court 
are always bound to secrecy; they are also bound in civil cases, 
if the revelation of some of the proceedings might be prejudicial 
to the parties. They are, furthermore, always bound to abso- 
lute secrecy concerning the discussion of the case in the tribunal 
before the sentence was delivered, and concerning the various 
votes and opinions of the judges. The judge can also bind by 
oath to secrecy the witnesses, experts, litigants and their lawyers 
and proxies, if the nature of the case or of the evidence is such 
that from the divulging of the proceedings and proofs the good 
reputation of others might be endangered, or discord, scandal, 
or other untoward consequences might result (Canon 1623). 

1603. The judge and other officials of the court are forbidden 
to accept any presents (munera) on the occasion of a trial 
(Canon 1624). As justice must not be jeopardized by an at- 
tempt to influence unduly the judge and others who assist him, 
the law forbids them to accept presents on the occasion of a 
trial. While the trial is going on, presents from the parties or 
from their friends or relations have the appearance of a bribe. 
The term munera is very general, as it includes not only gifts 
of personal or real property, but also all services and favors.’ 

The former law was more explicit than the Code in demand- 
ing that the ecclesiastical judge give his services eratuitously— 
so much so indeed that the ordinary judges were not allowed to 
demand indemnity from the parties for expenses (e.g., In trav- 


7 Lega, ‘De Judiciis Ecclesiasticis,’’ I, n. 83. 


220 A PRACTICAL COMMENTARY 


cling to a distant place within the territory of their jurisdic- 
tion to gather information concerning the facts in the case). 
Moreover, the ordinary judges who needed an assistant in the 
study of the case could not charge the parties with the expendi- 
tures of the assistant. The benefice connected with their office 
was considered sufficient for incidental expenditures. With re- 
gard to delegated judges, the Holy See prescribed that only men 
who had a benefice in the cathedral church should be delegated, 
and that they were to be indemnified, if the ease demanded 
travel outside their territory. If they needed an assistant in 
the study of the case, they could allow him a becoming salary, 
and charge it to plaintiff and defendant jointly. Other officials 
of the court were to be paid from the ordinary fees charged 
for judicial acts. Though the above regulations have not been 
embodied in the Code, there is no doubt that they should serve 
as a guide in the matter for the Ordinaries, who should thus 
appoint as judges and court officials men who have a benefice 
or other source of revenue which suffices for their proper main- 
tenance. For other expenditures of judicial acts, the bishops 
of each ecclesiastical province are ordered by Canon 1909 to 
fix a tariff or schedule of taxes. 

In connection with the prohibition of Canon 1624. concerning 
the acceptance of presents by the judge and other officials of 
the court, the question arises whether the acceptance of the so- 
called xenva or munuscula from the parties to a trial is also 
forbidden. The law of the Decretals tolerated the acceptance 
of food and drink, which could be consumed within a few days 
(Inber Sextus Bonifacii VUIT, «. 11, De rescriptis). Probably 
they are not forbidden, because they were not considered mu- 
nera, and the Code forbids the acceptance of munera (Noval, 
““Commentarium,’’ De Judiciis, n. 215; Augustine, ‘‘Commen- 
tary,’’ VII, 71, who holds that gifts of food and drink are also 
forbidden by Canon 1624). 

1604. Judges whose competency is certain and evident and 
who refuse to try a case, Judges who rashly declare themselves 
competent, and judges who through culpable negligence or malice 
follow an invalid procedure to the injury of others, or do an 
injustice or otherwise cause damage to the contending parties, 
are liable for damages and can be punished by the loeal Ordi- 
nary, or, if the bishop has been guilty, by the Apostolic See, 


CANONS 1625-1627 221 


The proceedings against the judge may be instituted either at 
the request of the parties, or even ea officto. The penalties are 
to be proportioned to the gravity of the guilt, and may even 
extend to the deprivation of the office (Canon 1625, § 1). 

1605. Judges who dare to violate the law of secrecy or com- 
municate to others secret proceedings in any manner, shall be 
punished with fines and other penalties, even with deprivation 
of office, in proportion to the gravity of their guilt: if the 
particular laws prescribe graver penalties in any cases, these 
laws shall remain. The officials and assistants of the court are 
subject to the same penalties if they have been cuilty of similar 
delinquencies, and may be punished also by the judge (Canon 
1625). 

1606. When the judge foresees that the plaintiff will probably 
disregard the ecclesiastical sentence if it should happen to be 
adverse, and that therefore the rights of the defendant are not 
sufficiently protected, he can at the petition of the defendant, 
or even ex officio, force ‘the plaintiff to give sufficient security 
for the observance of the ecclesiastical sentence (Canon 1626). 


CHAPTER II. 


OF THE ORDER OF THE CALENDAR 


1607. The judges and tribunals are bound to try the cases 
brought to them in that order in which they came to the court, 
unless some one of them requires a more speedy decision than 
the others. In the latter case, the preference must be stated by 
special decree of the judge or the court (Canon 1627). 

1608. Dilatory exceptions, especially those which have refer- 
ence to the personages and the manner of the trial, must be 
proposed and ruled on before the contestatio litis, unless they 
emerged only after the contestatio, or the party raising the 
exceptions affirms under oath that he did not until then have 
knowledge of them. The exception of the absolute imecompe- 
tency of the judge may be raised by the parties at any period 
of the trial or stage of the case (ie., in the first, or second, or 
any further trial of the case). The exception of excommuni- 
cation can be also raised at every period and every stage of a 
trial, provided it is raised before the final sentence. In the case 


222 A PRACTICAL COMMENTARY 


of excommunicati vitandi or excommunicati tolerati censured by 
declaratory or condemnatory sentence, they must be always ex- 
cluded ex officio by the court (Canon 1628). 

As the judicial trial must proceed orderly from step to step, 
certain pleas have to be made at Specified stages of the case 
under penalty of forfeiting the right to make them. The bill 
of complaint by the plaintiff to the judge is the first step in 
civil cases; the decision of the judge on his own competency 
and on the right of the plaintiff to bring the action is the second 
step. The third is the summons of plaintiff and defendant. The 
fourth is the contestatio lutts, which consists in the appearance of 
the litigants in court, the reading of the bill of complaint, and 
the denial of the complaint by the defendant for the purpose 
of placing the ease in tigation (cfr. Canons 1726-1727). Now, 
Canon 1628 prescribes that dilatory exceptions must be made 
before the contestatio litts, because with that contestation the 
first stage or instance of the trial commences (cfr. Canon 1732), 
and dilatory exceptions aim at evading the suit for the present 
(e.g., by objecting to the petition for payment because it is not 
yet due, or by objecting to the relative competency of the judge, 
or by objecting that the judge is prejudiced, interested in the 
case, etc.). If the exception is sustained, the action which tenta- 
tively commenced with the summons has to be dropped by the 
court temporarily or permanently. Canon 1628 makes allow- 
ance for exceptional circumstances in which the dilatory excep- 
tions can be raised even after the contestatio litis. 

The defendant may raise the exception of excommunication 
of either the plaintiff or the Judge at any time of the trial, for, 
in virtue of Canon 2263, every excommunicated person is barred 
from acting as plaintiff in ecclesiastical trials, unless he brings 
suit to contest the justice or legality of his excommunication, 
or unless by proxy he institutes some other action which has 
the purpose of averting injury to his spiritual welfare (cfr. 
Canon 1654). The exception of excommunication may be raised 
against the judge, for, in virtue of Canon 2264, an excommuni- 
cated judge cannot licitly conduct a trial; and, if he is an exrcom- 
municatus vitandus or has been excommunicated by declaratory 
or condemnatory sentence of his superior, the judicial acts of 
the judge are invalid (cfr. Canon 2264). If the plaintiff is an 
excommunicatus vitandus, or has been excommunicated by de- 


CANONS 1628-1630 223 


claratory or condemnatory sentence, it is not necessary for the 
defendant to raise the objection—though he may—because the 
judge of his own initiative is obliged to refuse the plaintiff 
permission to bring the suit. 

1609. Peremptory exceptions which put an end to the hti- 
gation—e.g., the exception of res judicata (final and unappeal- 
able sentence), agreement, ete.—must be raised and ruled on 
before the contestatio litis. Should one party raise them later, 
his plea is not to be rejected, but he is held liable for the costs, 
unless he proves that he did not maliciously delay the raising 
of the exception. Other peremptory exceptions rust be raised 
after the contestatio litis, and they are to be ruled on at the 
proper time according to the rules concerning incidental ques- 
tions (Canon 1629). 

1610. It is preferable that reconventiones (counter-claims by 
the defendant) be made immediately after the contestatio litis, 
but they may be brought at any time during the trial before 
the sentence is rendered. The counter-charges are to be tried 
simultaneously with the main suit, unless it is necessary to try 
them separately, or the judge thinks a separate trial more ex- 
pedient (Canon 1630). 

The actiones reconventionales are complaints made by the 
defendant against the plaintiff in the course of the same suit. 
These counter-claims of the defendant are ordinarily to be made 
immediately after the contestatio litis (i.e., in connection with 
the denial by the defendant of the claim of the plaintiff). Canon 
Law does not require that the counter-claim of the defendant 
should concern the same matter about which the plaintiff brings 
suit, but it may deal with an entirely different matter: for 
example, when a church through its pastor sues another church 
for payment of goods bought by and delivered to the defendant 
church, the defendant can plead as an off-set any other claim 
it has against the plaintiff church—e.g., for interest on a loan 
due and unpaid, for work done for the plaintiff for which pay- 
ment is due and unpaid, ete. (cfr. Canons 1690-1692). This 
counter-claim may be made even after the contestatio litis, but 
must be made before the issuance of the sentence. If made 
after the sentence has been pronounced, the defendant can urge 
his claim only by instituting a new action. The counter-claim 
must be made in a civil suit, inasmuch as private individuals 


224 A PRACTICAL COMMENTARY 


may not act as plaintiffs in a criminal suit, because that is the 
province of the prosecutor. 

1611. All questions regarding the security to be given to 
eover the cost of the trial, about granting a defence free of 
charge (if a request to this effect should be made right at the 
beginning of the case), and other similar points are as a rule 
to be settled before the contestatio litis (Canon 1631). 

1612. If, after the principal question has been submitted to 
the court, a so-called prejudicial question should arise (i.e., a 
question on the solution of which the settlement of the prin- 
cipal question depends), this latter issue must be first decided 
by the court (Canon 1632). 

If incidental issues arise out of the main controversy, those 
incidental issues should first be settled which prepare the way 
for the solution of the other issues. If there is no logical con- 
nexion in the incidental issues, they shall be decided in the order 
in which they have been raised by either party. If the charge 
‘‘de spolio’’ (efr. Canons 1698 and 1699) arises incidentally, 
that issue must be settled before all others (Canon 1633). 

The prejudicial question is somewhat similar to an exception 
(though it is of a more general character), for, Just as an ex- 
ception may affect the claim of the plaintiff, so may the prej- 
udicial question diminish or bar his claim. Because of the 
damaging effect on the claim of the plaintiff, the prejudicial 
question has first to be decided before the case can proceed. 
It is evident that a person who makes an assertion in court, must 
prove what he asserts, and therefore the one who raises the prej- 
udicial question must prove the point he raises: for example, if 
in a case of the inheritance of children the validity of the 
marriage (cfr. Canon 1972) or the legitimacy of. a child is ques- 
tioned, the one who raises the question must adduce his proofs, 
and the judge must rule on the question before any further 
proceedings. | 


CHAPTER IIT 
TERMS OF POSTPONEMENT AND FATALIA LEGIS 
1613. By fatalia legis are meant fixed periods upon the lapse 


of which the law denies the right to sue; they cannot be pro- 
longed. Terms of postponement fixed by the court or by agree- 


CANONS 1631-1637 225 


ment of the parties may before their expiration be extended by 
the judge for a just cause, after hearing or at the petition of 
the parties. The judge, however, must beware lest the trial be 
protracted too long by the prorogation (Canon 1634). 

If the day fixed for a judicial action is a holiday, and the 
order of the judge does not explicitly state that the court 1s 
nevertheless to sit for the trial of cases, the prorogation is under- 
stood to extend to the next following day that is not a holiday 
(Canon 1635). 

The periods or terms fixed by the procedural law of the Code 
—the termini legales—demand that certain actions must be done 
within the specified time under pain of forfeiting the right to 
act, and these terms cannot be prolonged by the court even with 
the consent of both parties. These terms are indicated in vari- 
ous Canons of Book IV of the Code (e.g., Canons 1610, 1684, 
1688, 1695, 1698, 1703, 1709, 1881). The terms which are com- 
mitted to the discretion of the judge (termini judiciales), and 
the terms which the law permits the parties to fix by mutual 
agreement and with the approval of the judge, may be prolonged 
by the judge before their expiration, if the parties request it, 
or also at the initiative of the judge after having heard the 
parties concerning the prolongation. 


CHaprer LV 
OF THE PLACE AND TIME FOR COURT SESSIONS 


1614. Though the bishop has the right to hold court at any 
place within his diocese, with the exception of exempt places, he 
should nevertheless designate a hall at his residence which is to 
serve as the ordinary place for trials. A crucifix should occupy 
a prominent place in this hall, and a Book of the Gospels must 
be provided (Canon 1636). 

A judge who has been forcibly expelled from his territory, 
or who is prevented from exercising jurisdiction there, may 
exercise his jurisdiction and pronounce sentence outside his terri- 
tory, but he must inform the local Ordinary of the fact that he 
holds court in his diocese (Canon 1637). 

1615. In every diocese the Ordinary, after considering fully 
the local circumstances, shall fix by public decree convenient 
days and hours during which regular access can be had to the 


226 A PRACTICAL COMMENTARY 


court to request its services in the administration of justice. 
However, for a just reason and whenever there is danger in 
delay, the faithful may invoke the services of the judge at any 
time to protect their rights or the public welfare (Canon 1638). 

1616. Holydays of obligation and the last three days of Holy 
Week shall be observed as dies feriati (ie., days on which ju- 
dicial procedure must rest). On these days it is forbidden to 
issue summons, have court hearings, examine the parties and 
witnesses, accept proofs, and issue or execute decrees and sen- 
tences, unless necessity, Christian charity, or the public welfare 
demand otherwise. The judge should in individual cases decide 
and announce whether and how far any judicial acts should take 
place on these days (Canon 1639). 

Under the former Canon Law the judicial acts done on holy- 
days of obligation were null and void, unless necessity or Chris- 
tian charity prompted the judge to act. The Code retains the 
prohibition of judicial procedure on holydays, but it does not 
invalidate the acts. In the former law there was also a pro- 
hibition to hold court at night; the Code does not mention this 
law, but states that the days and hours for regular court ses- 
sions should be made convenient for the people.® 


CHAPTER V 


OF THE PERSONS TO BE ADMITTED TO COURT SESSIONS AND 
OF THE MANNER OF DRAWING UP AND PRESERVING JU- 
DICIAL ACTS 
1617. While the court is in session, outsiders shall be ex- 

cluded from the court-room, and those only shall be present 

whom the judge thinks necessary for conducting the trial. Any 
of those present who gravely offend against the respect and 
obedience due to the court, may be at once and without further 
procedure forced to obey through censures and other appropriate 
penalties imposed by the judge in whose presence they misbe- 
have. Advocates and procurators who are guilty of such mis- 
conduct, may be deprived by the judge of the right to conduct 

other cases before ecclesiastical courts (Canon 1640). 

The procurator mentioned frequently in the procedural law 
is a proxy or substitute for the plaintiff or defendant, and takes 
the place of such party in court. As a rule, it suffices that the 


8 Lega, ‘‘De Judiciis Heclesiasticis,’’ I, nn, 363-368. 


CANONS 1638-1643 227 


proxy appears in court when the presence of the one whom he 
represents is demanded, unless the law or the explicit command 
of the judge requires the personal presence of the plaintiff or 
defendant at certain judicial proceedings (cfr. Canons 1647 and 
1655-1666). 

1618. If some of the judicial proceedings involve a person 
who is ignorant of the vernacular, and the judges and parties 
do not understand the language of such person, a sworn in- 
terpreter against whom neither party raises a legitimate objec- 
tion is to be designated and employed by the judge (Canon 
1641). 

1619. All the acts of a trial—both the acta cause (those which 
relate to the merits of the case, e.g., decisions and all proofs) 
and the acta processus (those which relate to the form of pro- 
cedure, e.g., summons, declarations or notices, ete.)—must be 
committed to writing. In so far as possible, the acts shall be 
drawn up in Latin, unless there is a good reason to do other- 
wise; but the examination and answers of the witnesses and 
similar acts must be drawn up in the vernacular (Canon 1642). 
Every folio of the acts shall be numbered, and the signature 
of the actuary with the seal of the court shall be put on every 
folio. When an individual act is completed, or interrupted and 
postponed for another session, it shall be signed by the actuary 
and the judge (or the presiding judge, if several judges sit in 
the same case). Whenever the signature of the parties or the 
witnesses is required in judicial acts, and a party or a witness 
is unable or refuses to sign his name, a note to that effect shall 
be made in such acts, and the actuary and the judge shall also 
attest that the act itself was read verbatim to the party or to 
the witness, and that the party or witness could not or did not 
want to subscribe to it (Canon 1643). 

The actuary (actuarius) gets his name from the office of 
writing the acts of the judicial proceedings. He is one of the 
absolutely necessary officials in a trial, and the acts are null and 
void unless they are written or at least signed by the actuary. 
To function as actuary in a trial, a person must have been ap- 
pointed a notary by the competent authority; the judge may 
appoint as actuary for a case to be tried by him any of the 
notaries of the respective diocese where the case is tried, unless 
the Ordinary has already assigned a notary for the trial (cfr. 


228 A PRACTICAL COMMENTARY 


Canon 1585). The chancellor of a diocese becomes a notary by 
appointment to the chancellorship. The bishop may nominate 
other notaries for acts of every kind, for judicial acts generally, 
for an individual trial, or for some specified affair (cfr. Canons 
312-313). 

1620. In ease of appeal, copies of the acts recorded as stated 
in Canons 1642-1643 shall be bound into a fascicle (with an 
index of all acts and documents and an affidavit of the actuary 
or chancellor, testifying that the copies are exact and complete), 
and forwarded to the higher court. If copies cannot be made 
without great inconvenience, the original acts shall be forwarded 
with proper precautions. If the acts of the trial must be for- 
warded to a place where the vernacular language of the first 
court is unknown, the acts shall be translated into Latin, due 
precaution being taken to give a faithful translation. If the 
acts were not drawn up in the proper form and style, they may 
be rejected by the superior court; in that case those responsible 
for their faulty drafting must have them redrafted and for- 
warded at their own expense (Canon 1644). 

1621. On the completion of the trial, the documents should 
be returned to the parties, unless in criminal cases the judge 
shall decide that the public interest demands the retention of 
some document. All documents which remain with the court 
are to be deposited in the diocesan archives—in the public or 
the secret archives, as the nature of the case demands. The 
notaries, actuaries, and the chancellor are forbidden to furnish, 
without an order from the judge, copies of judicial acts and 
documents which have become the property of the court. Anony- 
mous letters which add nothing to the merits of a trial, and 
even signed letters which are certainly slanderous, shall be 
destroyed (Canon 1645). 


TITLE IV 


OF THE PARTIES TO A TRIAL 
CHAPTER I 
OF THE PLAINTIFF AND THE DEFENDANT 


1622. Every person not prohibited by the Sacred Canons may 
institute a suit as plaintiff. The defendant who is legitimately 


CANONS 1644-1651 229 


sued must answer (Canon 1646). Though the plaintiff or the 
defendant has appointed a procurator or a lawyer to take his 
part in court, he must always appear in person, when either the 
law or the orders of the judge demand his presence (Canon 
1647). 

1623. Parents, tutors and guardians are bound to plead or 
defend the cases of minors and persons without the use of 
reason. If the judge thinks that the rights of such persons are 
in conflict with the rights of the parents, tutors or guardians, 
or that they live at so great a distance from the parents, tutors 
or guardians that the latter cannot at all, or can only with great 
difficulty represent their charges in court, a guardian ad litem 
is to be appointed by the judge. However, in spiritual cases 
or in cases connected with spiritual affairs, minors who have 
attained the use of reason can sue and defend without the con- 
sent of the parent or tutor; if they are fourteen years of age, 
they can in person plead their case, but otherwise they must 
plead through a tutor appointed by the Ordinary, or by a tutor 
chosen by the minor with the approval of the Ordinary (Canon 
1648). | 

1624. Collegiate and non-collegiate moral or legal persons 
are to be represented in court by the rector or administrator, 
except in the special cases mentioned in Canon 1653. If the 
rights of the legal person conflict with those of the rector or 
administrator, the Ordinary shall designate a procurator to 
represent the legal person (Canon 1649). 

1625. Persons who because of their spendthrift habits have 
been deprived of the administration of their goods, and weak- 
minded persons can appear personally in court only to answer 
for their own offenses, or at the order of the judge; otherwise 
they must sue and be sued through their guardians (Canon 
1650). | 
Before a guardian assigned to a person by the civil authority 
ean be admitted by the judge into court, the consent of the 
proper Ordinary of that person is required. The Ordinary may 
also appoint another guardian for the ecclesiastical forum, if 
after mature reflection he thinks such appointment prudent 
(Canon 1651). | 

1626. Without the consent of their Superiors, religious have 
no personal standing in court, except in the following cases: 


230 A PRACTICAL COMMENTARY 


(1) if the suit is concerned with vindicating against the 
religious organization rights which they have acquired by pro- 
fession ; 

(2) if they legitimately live outside the religious house, and 
the defence of their rights becomes urgent; 

(3) if they wish to denounce their superior (Canon 1652). 

1627. Local Ordinaries may appear in court in the name of 
the cathedral church or of the mensa episcopalis; but, to act 
licitly, they must consult the Cathedral Chapter (or the diocesan 
consultors) or the board of administration, securing their advice 
or their consent according to the amount of money involved in 
the case, as prescribed by Canon 1532. 

All beneficiaries can sue or be sued in the name of their 
benefice, but to act licitly they must observe the precepts of 
Canon 1526. 

Prelates and the superiors of chapters, sodalities and any 
other college, cannot act in court in the name of their community, 
unless they have obtained its consent in the manner defined by 
its statutes (Canon 1653, §§ 1-3). 

A pious institution or community has the right to hold these 
persons liable for damages who, in disregard of the three fore- 
going paragraphs of this Canon, acted in court without the con- 
sent or advice prescribed by law. 

The local Ordinary himself may either in person or through 
others act in court for the legal persons who are under his juris- 
diction, whenever the administrator of a legal person fails to 
defend, or is negligent in the defence of its rights. 

Superiors of religious organizations cannot act in court for 
their community, except in the manner prescribed by the con- 
stitutions of their organization (Canon 1653, §§ 4-6). 

1628. Excommunicati vitandi, and excommunicati tolerati 
after a declaratory or condemnatory sentence, may personally 
institute an action in court only to attack the justice or legality 
of their excommunication; through a procurator, they may act 
in court to avert any other spiritual harm; in all other cases 
they are not admitted to institute a suit in ecclesiastical courts. 
Other excommunicated persons are generally admitted to act in 
court (Canon 1654). 

Canon 1654 states that other excommunicated persons (i.e., 
those who are not excommunicati vitandi or persons excommuni- 


CANONS 1652-1655 231 


eated by declaratory or condemnatory sentence) are generally 
admitted to act in court. This Canon is modified by Canon 
1628 which gives the opposing party the right to raise the ex- 
ception or objection of excommunication (cfr. n. 1608). The 
sense of Canon 1654 is, therefore, that other excommunicated 
persons may act in court unless the exception of excommuni- 
cation is raised against them. Under the law of the Decretals 
of Pope Gregory IX (ec. 7, De judicis, lib. II, tit. 1), every 
excommunicated person was forbidden to appear personally in 
court, either as plaintiff or as defendant. Lest he derive benefit 
from his excommunication, the law provided that he could be 
sued, but he had to appear in court by proxy. Canon 1604 
allows even the excommunicats vitandt to appear personally in 
court to bring suit for the purpose of testing the justice or 
legality of their excommunication, and to institute by proxy 
any other suit which has for its purpose the averting of spir- 
itual harm from the excommunicated person (e.g., to sue for 
the declaration of nullity of his marriage). 


CHAPTER II 
OF PROXIES IN LITIGATIONS AND ADVOCATES 


1629. In eriminal trials the accused must always have an 
advocate, either chosen by himself or appointed by the judge. 
Also in civil trials, when minors are involved or the case affects . 
the public welfare, the judge shall ex officio assign an advocate 
to an unrepresented defendant, or, if necessary, add another 
advocate to the one chosen by such party. Apart from these 
cases, the party can freely appoint an advocate or a proxy, and 
the party can also plead and defend the case himself, unless 
the judge thinks that the services of an advocate or a proxy 
are necessary in the case. If the bishop is in the case (as plain- 
tiff or defendant), he should appoint a proxy to appear in his 
name (Canon 1655). 

The advocatus (attorney) or lawyer denotes a person who 
is entitled by commission of the competent authority to plead 
the case of a plaintiff or defendant in court. The proxy (pro- 
curator) is a personal representative of the plaintiff or de- 
fendant, and is properly styled procurator ad litem, because the 
term procurator without specification denotes a personal rep- 


232 A PRACTICAL COMMENTARY ° 


resentative in any affair in which the law permits to act through 
a representative—e.g., the proxy of a sponsor at Baptism (cfr. 
Canon 765), the proxy of one of the parties in marriage (cir. 
Canon 1088). Generally the principle is recognized in Canon 
Law that one may do those things through another which one 
can do in person. An agent (negotiorum gestor) is likewise a 
personal representative of the principal, but differs from the 
procurator ad litem, because the agency may extend to a great 
variety of affairs and need not be as formal as the appointment 
of a proxy in a trial, while the latter may not act in court for 
his principal until after he has deposited with the court the 
formal document of appointment as proxy for the lawsuit (cfr: 
Canon 1659). If the proxy in a lawsuit has not been appointed 
by a valid mandate, his actions in court are invalid and the 
sentence is null and void (efr. Canon 1892, n. 3). 

1630. A party may appoint only one proxy, who cannot 
choose a substitute unless this power has been explicitly granted 
to him. If for a just reason several proxies are appointed by 
the same party, they must be appointed with equal and inde- 
pendent power so that the one who acts first for the party 
excludes the others. Several advocates may be appointed to act 
together for a party. Both offices, that of proxy and of advo- 
cate, may be held by one and the same person on behalf of the 
same client in the same case (Canon 1656). 

1631. The proxy and the advocate must be Catholics, at least 
twenty-one years of age, and of good reputation. A non-Catholic 
is admitted only by way of exception and in case of necessity. 
The advocate must in addition have the degree of doctor, or 
be otherwise expert in at least Canon Law. Religious may be 
admitted (unless their constitutions forbid it) in cases only in 
which the good of their own organization is concerned; they 
need the permission of their superior (Canon 1657). 

1632. Every person who according to the foregoing Canon 
is qualified can be appointed by a party as proxy, and it is not 
necessary that the Ordinary first approve the choice. A person 
cannot act as advocate at a trial in court unless he has been 
approved by the Ordinary, which approval may be general for 
all cases, or particular for an individual case. In a trial before 
a judge delegated by the Holy See, it is the right of the dele- 
gate to approve and admit the advocate whom the party desires 


CANONS 1656-1662 233 


to employ. The proxy and advocate in the cases between exempt 
religious of the same clerical organization, or between two prov- 
inces or two autonomous monasteries of exempt religious of the 
same organization (as described in Canon 1579, §§ 1-2), are to be 
chosen from the same community, and, before they begin to act, 
they need the approval of the superior who acts as judge in the 
case. In eases of religious which, according to Canon 1079, § 3, 
are tried in the court of the local Ordinary, even outsiders may 
be admitted to act as proxy or advocate (Canon 1658). 

1633. The judge shall not admit the proxy to plead until he 
has deposited in court a special written mandate of the party 
to represent him in the litigation, which mandate may be given 
at the foot of the summons, and signed by the party, with place 
and date. If the person who issued the mandate does not know 
how to write, this must be indicated in writing, and a pastor, 
or a notary of the Curia, or two witnesses, shall sion the mandate 
in place of the person (Canon 1659). The mandate to the proxy 
must be preserved with the acts of the case (Canon 1660). 

The advocate who is to plead a case must have from the 
party or from the judge a commission similar to the mandate 
of the proxy, which commission must be embodied in the acts of 
the case (Canon 1661). 

The pastor who signs the mandate of a person unable to sign 
his own name need not be the proper pastor of that party, for 
Canon 1659 merely has ‘‘parochus subsignet,’’ but he must be 
within the territory of his parish when he signs the document, 
as was decided in reference to the signing by a pastor of the 
betrothal agreement (Sacred Congregation of the Council, March 
28, 1908; Acta S. Sedis, XLI, 288). The notary of the Curia is 
not necessarily the chancellor of the diocese, but may be any 
notary appointed by the bishop either with general faculty for 
all acts or for judicial acts only, for Canon 373 states that the 
bishop may appoint other notaries besides the chancellor. 

1634. Unless the proxy has a special mandate, he cannot 
renounce the action, or instance, or judicial acts, nor can he make 
a friendly settlement or agreement with the other party, nor 
agree to have the case settled by arbitration, nor can he take an 
oath for his party, nor ask the other party to take the oath, and 
generally he cannot do those things for which the law requires 
a special mandate (Canon 1662). As to the oath demanded or 


234 A PRACTICAL COMMENTARY 


permitted by Canon Law, Canon 1316 rules that it cannot be 
validly taken by proxy. 

1635. A proxy or an advocate may be rejected by decree of 
the judge, issued either ex officio or at the petition of one of 
the parties, but there must be a just cause for rejecting him 
(Canon 1663). Advocates and proxies can be removed by the 
person who constituted them, but there remains the obligation 
to pay the fees due to them. The removal does not take effect 
until it has been made known to them, and, if the contestatio 
itis has already taken place, it does not take effect until the 
judge and the adverse party have also been notified. After the 
final sentence has been issued, the proxy has the right and duty 
to make the appeal, if the principal does not refuse (Canon 
1664). . 

1636. Proxies and advocates are forbidden to buy the law- 
suit, or to make an agreement for immoderate profits or for 
part of the thing in litigation. If they do so, the agreement is 
invalid, and they may be punished by the judge or by the Ordi- 
nary with a fine; an advocate may, moreover, be suspended from 
office, and even be deprived altogether of the right to act as 
advocate, if he should have failed in this matter repeatedly 
(Canon 1665). Advocates and proxies who for the sake of gifts 
or promises or any other reason have violated the duties of their 
office, shall be deprived of their office, and, besides being bound 
to repair the damages, they shall be punished with fines and 
other appropriate penalties (Canon 1666). 


TITLE V 
OF ACTIONS AND EXCEPTIONS 


1637. Every right can be enforced not only by action in 
court, unless the contrary is explicitly stated, but also by ex- 
ception, which is always open and is of its very nature perpetual 
(Canon 1667). One’s rights can be protected directly by insti- 
tuting an action in court, and indirectly by defending one’s 
rights attacked by another through the medium of exceptions. 
The right to sue is forfeited under certain conditions, while the 
right to raise an exception does not cease by prescription, or in 
any other way in which the right to sue may lapse. Though, 
as a rule, every right can be enforced through the medium of 


CANONS 1663-1668 235 


the court, still there are cases where the right cannot be en- 
forced: for example, from the promise of marriage no right is 
given in law to force the other party to keep the promise, but 
only to sue for damages caused by an unwarranted breach of 
the promise (cfr. Canon 1017) ; in so-called ‘‘outlawed’’ debts 
and obligation, there remains the natural obligation, to pay, but 
it cannot be enforced by action in court (efr. Canons 1701— 
1705) ; an excommunicated person, if a vitandus or if his excom- 
munication has been pronounced by the court, cannot while 
under that censure sue to enforce his rights (cfr. Canon 1654). 

1638. The suit or action in civil cases is twofold, either the 
actio petitoria or the actio possessoria: the former consists in 
the vindication of one’s rights (in reference to objects, persons, 
acts, etc.), because the law gives one such right; the latter 1s 
a suit to obtain possession of an object, or quasi-possession, if 
there is question of obtaining free exercise of one’s rights (Canon 
1668). The title or proprietory rights are not considered in 
the possessory actions, but only the question who is entitled to 
possession or quasi-possession. 

In the actio petitoria the plaintiff bases his claim to a thing 
or a right because the law gives him title to it; in the possessory 
action he bases his claim on possession of things corporeal or 
quasi-possession of things incorporeal. The pleading of one’s 
rights is reduced to the least possible formalities in Canon Law, 
while, in the old Roman Civil Law and in the English and Ameri- 
can Common Law, the pleading was extremely formal. The Canon 
Law and the more recent law of most states of the American 
Union and other countries adhere to the principle that there is a 
remedy through court action for the enforcement of every right. 
It suffices to plead a state of facts, which sufficiently show the 
legal right to one’s claim. One may in the same case plead the 
petitory and possessory actions combined. For example, A sues 
for the return of a thing to him because he is the rightful owner 
(petitory action), and also for the regaining of possession because 
B has either by stealth or by force taken the thing out of A’s 
possession (possessory action). If A fails in his proof of owner- 
ship, he still has a chance to obtain possession of the thing by 
proving his second claim. 

1639. A plaintiff may bring several cases simultaneously 
against the defendant either in the same matter or in different 


236 A PRACTICAL COMMENTARY 


matters, provided they do not conflict with each other, and they 
do not exceed the competency of the court. The defendant is 
not forbidden to make use of several exceptions, even contra- 
dictory ones (Canon 1669). The plaintiff may in the same 
instance bring a possessory and a petitory suit, unless the de- 
fendant raises the exception of spoliation. The defendant who 
is sued in a petitory action can bring a counter-suit of a pos- 
sessory character, and vice versa, unless there is question of 
spoliation (Canon 1670). 

1640. Before the conclusion of a case, a plaintiff may turn 
from a petitory action to a possessory action to acquire or regain 
possession. for a just reason the judge may allow this change 
of the action even after the case is closed, but before the final 
sentence. The judge may give sentence on the several actions 
of a plamtiff in one sentence, or he may decide one after the 
other, as he thinks best for the speedier and fuller protection 
of rights (Canon 1671). 


CHAPTER I 


OF THE SEQUESTRATION OF GOODS AND THE INJUNCTION OF 
THE EXERCISE OF RIGHTS 


1641. If a person has shown that he has some right over a 
thing retained by another, and that he is threatened with damage 
unless the thing is given into the custody of a third person, he 
has a right to obtain from the judge the sequestration of that 
object. In similar circumstances one can get from the court 
an order enjoining somebody from the exercise of a right. The 
sequestration of a thing and prohibition to exercise a right can 
be decreed by the judge ex officio, especially at the instance of 
the prosecutor or the defensor vincult, whenever the public wel- 
fare seems to require it (Canon 1672). 

1642. Sequestration of a thing is admitted also for the sake 
of furnishing security for the creditor, provided such claim is 
absolutely certain, and that the rule of Canon 1923, is ob- 
served (the property is to be taken from the debtor with the 
least possible damage to him, and those things shall be spared 
which are necessary for his food or his trade). The sequestra- 
tion may extend even to goods of the debtor which are in the 
possession of others, either as a deposit or under any other title 


CANONS 1669-1677 237 


(Canon 1673). Sequestration of goods and the suspension of 
the exercise of a right cannot be decreed if the loss which is 
feared can be repaired in other ways, and proper security to 
repair it is offered (Canon 1674). 

1643. The custody of the property subjected to sequestra- 
tion is to be committed to a reliable person to be designated 
by the judge at the proposal of the parties; such person is 
called the sequester. If the parties do not agree on the sequester, 
the judge shall ex officio appoint one. The sequester (or re- 
ceiver) must use the same diligence in the custody, care and 
preservation of the property as in connection with his own goods, 
and he must afterwards give the property entrusted to him to 
the person in whose favor the judge has ruled, and with the 
property he must deliver any interest, increase or fruit of the 
property during his custody of the same. The judge may decree 
a proper remuneration to the sequester at his request (Canon 
1675). 


CHAPTER IT 


OF ACTIONS TO HALT NEW ENTERPRISES AND TO OBTAIN 
SECURITY AGAINST DANGER TO ONE’S PROPERTY 

1644. One who fears that he may incur damage through 
some new work or enterprise may denounce it to the judge and 
ask that it may be interrupted until the rights of both parties 
have been defined by the sentence of the judge. As soon as 
this prohibition has been made known to the other party, he 
must at once stop work, but he may obtain permission from 
the judge to continue, provided he gives sufficient security to 
restore everything to the former condition if he should lose in 
the trial. The party who denounces a new enterprise has two 
months within which he must prove his right to stop the work; 
this time may be either prolonged or shortened by the judge for 
a good and necessary cause, after hearing the other party (Canon 
1676). If an old work is being largely changed, the law is the 
same as stated in Canon 1676 about a new work (Canon 1677). 

1645. Any person who fears grave damage to his property 
from a building belonging to another which threatens to col- 
lapse, or from a tree or from anything whatsoever, has the right 
to institute the action de damno infecto to obtain either the 
removal of the danger or security that the damage will be 


238 A PRACTICAL COMMENTARY » 


' averted, or if it should perhaps arise, be compensated for (Canon 
1678). 

The remedies which Canons 1676-1678 grant are some of 
the cases in which the Roman Law afforded relief by ‘‘inter- 
dict.’’ In the law of England and the United States the remedy 
is called an ‘‘injunction.’’ ‘‘An injunction is a judicial order 
operating mm personam, requiring a party to do or to abstain 
from doing some particular act’’ (Eaton, ‘‘Equity Jurispru- 
dence,’’ n. 278). The issuance of injunctions pertains to the 
courts of equity. In many states of the United States special 
courts of equity have been abolished, and the courts of law have 
jurisdiction to proceed either in law or in equity as the nature 
of the case may demand. The injunction is issued either in the 
form of an order to do a certain act (called ‘‘mandatory in- 
junction’’) or in the form of a prohibition to refrain from 
certain actions (called ‘‘preventive injunction’’). Formerly it 
was not certain in the civil law whether a court could issue an 
injunction to perform a positive act, for the very name of the 
remedy indicates its negative character, but ‘‘it seems well 
established at the present time that a court of equity may compel 
by injunction the performance of a positive act’’ (Eaton, 
‘‘Equity Jurisprudence,’’ n. 281). 

In the law of the United States one may not petition the 
court for an injunction unless one can prove: (1) that one has 
no plain, adequate and complete remedy at law; (2) that an 
irreparable injury will result unless the relief is granted. To 
authorize the remedy by injunction, it is not sufficient that a 
violation of a palpable legal right of property is threatened, 
but it is necessary in addition to show that the action at law 
does not afford full and complete relief. Wherefore, it is essen- 
tial to prove that, if one waits until the other has done the 
threatened injury, payment of damages alone would never com- 
pletely indemnify the injured party. An injunction may be 
obtained under certain conditions: (1) against proceedings at 
law, even against a sentence; (2) to prevent a breach of con- 
tract; (3) to prevent torts; (4) to prevent breach of trust, and 
violation of equitable rights; (5) to restrain collection of illegal 
taxes; (6) to prevent public officers and municipal corporations 
(cities, towns, villages) from violations of law to the detriment 
ot the public interests or property rights of individuals. 


CANONS 1678-1679 239 


Canon Law employs the injunction in its courts, not only 
in the cases mentioned in Canons 1676-1678 (ie., the erection 
of new buildings or notable alterations of old ones to the preju- 
dice of third parties, and injury threatened to one’s land or 
house by the dilapidated condition of a neighboring house or 
danger from old and tottering trees or any other object that 
endangers the adjacent property), but also in other cases. 
Canons 1672-1675 speak of sequestration and inhibition, which 
are injunctions employed when personal property and rights are 
in dispute. In these cases no injunction is granted unless one 
can prove that the threatened injury could not be repaired in 
any other way (cfr. Canon 1674), which is, as we saw, one of 
the essential conditions for obtaining an injunction under the 
civil law. The restitution into the former position (cfr. Canons 
1687-1689) and the action for the rescission of acts or contracts 
(efr. Canons 1684-1686) have the same purpose as the injune- 
tion, namely, to provide an equitable remedy against undue 
hardship where in strict law there would be no redress. The 
restitution can be granted also against a judicial sentence under 
the conditions of Canon 1905. Against the official acts of ecclesi- 
astical superiors in matters subject to their administrative au- 
thority there.is no injunction granted, nor any action in court, 
but merely recourse to the higher superior. Similarly, in the 
civil law of the United States, no right of action is given to 
private individuals against the government for damages inflicted 
in the performance of purely governmental duties. ‘‘In order 
to insure the due administration of government, it is necessary 
that the officers who are charged with the various duties of 
making, interpreting, and administrating the laws should enjoy 
a due measure of immunity from being called to account for 
their public acts at the instance of private parties. Muisgovern- 
ment is to be remedied at the ballot box, not by suits at law”’ 
(Black, ‘‘ American Constitutional Law,’’ n. 9). 


CHapter IIT 
OF ACTIONS ARISING FROM THE NULLITY OF ACTS 


1646. If an act or contract is invalid by law, the party con- 
cerned has a right to sue in court for the declaration of its 
nullity (Canon 1679). An act is null and void only when either 


240 A PRACTICAL COMMENTARY 


the essential constituents of the act are wanting, or some for- 
malities or conditions are lacking which the Sacred Canons re- 
quire under pain of nullity. The nullity of an act does not 
make null and void the acts which precede or follow, and which 
do not depend on the invalid act (Canon 1680). If the acts 
preceding or following an invalid act are part of the same 
transaction so that there is a necessary connection, the invalidity 
of the principal act entails the invalidity of the accessory acts, 
since they share in the fate of the principal act. If these other 
acts are only accidentally connected with the invalid act, but 
do not depend on it, they are not invalidated by the nullity of 
the one act. For example, if, after the legitimate suspension 
of a priest, the bishop forces him to resign his parish, and then 
gives the parish to another priest: the appointment of the new 
pastor is invalid because it depends on the invalid resignation 
(cfr. Canon 185), but the suspension holds, supposing that it 
was legitimately imposed, for it does not depend on another 
mvalid act.® 

1647. The person who has performed an invalid act is liable 
for the damages and expenses of the injured party (Canon 
1681). 

The nullity of an act cannot be declared by the judge ex 
officio unless it is in the interest of the public, or in favor of 
the poor, or minors, or others who enjoy the protection which 
law gives to minors (Canon 1682). 

1648. No inferior judge can review the validity of the con- 
firmation given by the Roman Pontiff to an act or instrument, 
unless he has first obtained a mandate from the Apostolic See 
(Canon 1683). 

The confirmation by the Roman Pontiff here spoken of means 
a confirmation of acts or instruments in the so-called forma 
specifica. There are two ways in which the Roman Pontiff may 
confirm acts of others—e.g., the Decrees of a Plenary Council 
(i.e., of the hierarchy of a whole nation)—in forma communt 
and in forma specifica. The confirmation in forma communi 
does not change the nature of the act or instrument confirmed, 
which does not become an act or document of the Supreme 
Pontiff, and, if the act or document is invalid, it remains invalid 
notwithstanding the confirmation of the Roman Pontiff. The 


9 Eichmann, ‘‘Prozessrecht des Cod. Jur. Can.,’’ 113. 


CANONS 1680-1684 241 


confirmation in forma specifica, however, raises the act or docu- 
ment thus confirmed to the state of a papal act or document by 
appropriation, and all defects of the original act or instrument 
are healed. The law of Canon 1683 is a repetition of the law 
of the Decretals of Pope Gregory IX (ec. 2, De confirmatione 
utili vel inutili, lib. II, tit. 30), and must therefore be inter- - 
preted in accordance with the common and accepted interpreta- 
tion of the former law. That interpretation is to the effect that 
only the confirmation in forma specifica by the Roman Pontiff 
bars inferior judges from passing sentence on the validity or in- 
validity of acts and instruments. The confirmation of Canon 1683 
means a confirmation by the Supreme Pontiff himself, not by any 
Roman Congregation or Office unless they gave the confirmation 
by special delegation of the Supreme Pontiff. The precept of 
Canon 1683 that acts and instruments which have become papal 
acts by the confirmation (in forma specifica) cannot be judged 
by a lower court except with the special permission of the Apos- 
tolic See, means that the permission of the Supreme Pontiff 
himself is required, for the Sacred Congregations and Roman 
Tribunals have no authority to judge acts of the Roman Pontiff. 


CHAPTER IV 


OF RESCISSORY ACTIONS AND THE RESTITUTIO IN INTEGRUM 


1649. A person who, under the influence of grave fear un- 
justly inflicted or misled by deceit, has committed an act or 
made a contract which is not automatically void in law, may 
obtain a rescission of the act or contract by the so-called rescis- 
sory action. The same action may be brought within two years — 
by a person who has suffered grave damage, losing through 
error over one-half the amount of the contract (Canon 1684). 

1650. This action can be brought: 

(1) against him who caused the fear or practised the deceit, 
though he did not do so for his own advantage, but to benefit 
another ; 

(2) against every possessor in bad faith, and even against 
a possessor in good faith, if he possesses goods which were ex- 
torted through fear or deceit; the possessor in good faith has 
the right to sue the person from whom he got the goods and 


242 A PRACTICAL COMMENTARY 


other previous possessors, including the author of the fear or 
the deceit (Canon 1685). 

If he who caused the fear or practised the deceit sues for 
the execution of an act or contract, the injured or deceived 
party has the right to cite the exception of fear or deceit (Canon 
- 1686). 

1651. Minors and other persons who enjoy the privilege of 
minors, when gravely injured, as well as their heirs and suc- 
cessors, may in addition to the ordinary means of getting redress 
apply to the court for the extraordinary relief of the restotutro 
in integrum (reinstatement in the previous condition), if they 
were injured in an affair or valid act which can be rescinded. 
The benefit of the action for restitutio in integrum can be granted 
also to adults who cannot resort to the action for rescission or 
any other ordinary remedy (e.g., because the time for bringing 
the action for rescission has expired, or the right of action has 
been forfeited through lapse of time), provided that they prove 
that they have a just cause to ask for this remedy, and that the 
injury they have suffered was not imputable to them (Canon 
1687). 

1652. The restitutto in integrum must be asked from the 
ordinary judge who is competent with respect to the person 
against whom the petition is entered. In the case of minors, 
the petition must be made within four years after attaining 
their majority; in the case of majors or legal persons, within 
four years after suffering the injury or after the cessation of 
the impediment which prevented action. Minors and persons 
enjoying the privilege of minors may be granted restitutro in 
integrum by the judge even ex officio, after consultation with 
or at the instance of the promoter of justice (Canon 1688). The 
effect of the restitutio in mtegrum is that all things are put in 
the same position as they were before the damage was inflicted, 
except that rights acquired by others in good faith before the 
petition for reinstatement remain undisturbed (Canon 1689). 
As the bona fide possessor is protected in law, even the rein- 
statement proceedings do not affect his rights: for example, if 
an administrator of a chureh had sold some goods of the church 
(e.g., the fruits or other produce of the land) and made a bad 
bargain, and a third person had in good faith bought them 
from the first purchaser before the administrator petitioned for 


CANONS 1685-1692 243 


a restitutio in integrum, the third person cannot be molested, 
though the court can force the first purchaser to pay a fair 
price. If the agreement was made through fear or deceit, even 
a third party who acquired possession in good faith can be forced 
by the court to part with the goods thus acquired (cfr. Canon 
1685). 


CHAPTER V 
OF ACTIONS AND COUNTER-ACTIONS 


1653. An action which the defendant brings against the 
plaintiff before the same judge and in the same trial for the 
purpose of defeating or diminishing the claim of the plaintiff 
is called reconventio (a counter-claim or cross-suit). A counter- 
suit against a counter-suit is not admitted (Canon 1690). Both 
Canon and civil law allow counter-suits to simplify litigation 
and settle two cases in one trial. Thus, if one man claims that 
another owes him one hundred dollars for work performed or 
services rendered, and the latter has an unpaid claim for one 
hundred dollars or more against the plaintiff for goods bought 
and delivered, both claims can be settled in the same trial. In 
the civil law there are many and intricate rules concerning 
counter-actions, set-off and recoupment. The Code has only the 
following few rules on the subject. 

1654. The counter-action may be brought in all civil trials 
with the exception of cases of spoliation. In criminal trials the 
counter-action is not admitted except in the case cited in Canon 
2218, §3 (Canon 1691). 

1655. The counter-action must be proposed to the judge who 
tries the principal action, though he is delegated for one case 
only and though he would be incompetent to try the case of the 
counter-action if it were brought independently of the principal 
case; if, however, the incompetency of the judge over the matter 
of the counter-action is absolute (efr. Canons 1556-1558 on 
absolute incompetency of diocesan courts), he cannot admit the 
counter-action in the trial (Canon 1692). 


CHAPTER VI 
OF POSSESSORY ACTIONS OR REMEDIES 


1656. A person who has a legitimate title to obtain the pos- 
session of a certain thing, or the exercise of a certain right, 


244 A PRACTICAL COMMENTARY 


may petition the court that he be granted the possession of such 
thing or the exercise of such right (Canon 1693). Not only 
possession, but even the simple holding of goods or rights, en- 
titles one, according to the following Canons, to a possessory 
action or exception (Canon 1694). 

1657. A person who has remained for a full year in possession 
of a thing or in quasi-possession of a right, may take an action 
for the retaining of possession (retenende@ possessions), if he is 
molested in the possession or quasi-possession. This action 
against the person who molests him in his possession or quasi- 
possession may be brought only within one year from the time 
he was first molested (Canon 1695). 

1658. The action for the retaining of possession may be 
brought by all persons who have actual possession, though it 
was obtained by force, or stealth, or is held precariously (pre- 
carto) ; it ean be brought against any disturber of his possession 
except the person from whom the possessor took it by force or 
stealth, or who gave him precarious possession. In cases which 
concern the public weal, the prosecutor has the right to raise 
the objection of faulty possession against one who holds posses- 
sion through force, stealth, or precariously (Canon 1696). 

The phrase precarto accepit means that one has obtained 
permission to hold or use the thing at the good pleasure of the 
owner, without legal right or title to the possession as against 
the lender, who may thus at any time demand the return of 
the thing. Against persons other than the real owner this kind 
of possession does give rights, for nobody other than the owner 
can disturb the holder in his possession. Precarious possession 
thus means possession in the name of and at the pleasure of 
the owner. 

The distinction between ownership (title) and possession of 
things becomes very important in lawsuits. Frequently the 
owner and possessor is one and the same person, but they may 
be different persons, and in that event owner and possessor have 
distinct rights. When the Code (in Canons 1693-1700) treats 
of possessory actions, it considers merely the legal rights accru- 
ing from possession, irrespective of ownership. Possession may 
be based on a legal right (the titulus legitimus of Canon 1693), 
or it may be based merely on the fact of possession (the actual 
retention spoken of in Canon 1696). Possession is protected in 


CANONS. 1693-1699 245 


law to the extent that even a person who obtained possession 
by stealth, or by force, or by kindness of the lender, may insti- 
tute a lawsuit for the retaining of possession (if he is molested) 
against all persons except those from whom he stole, seized or 
holds the thing (efr. Canon 1696). 

1659. If a controversy arises as to which of two men is the 
possessor, that one is to be preferred who within the last year 
exercised the more frequent and important acts of possession. 
If that remains doubtful, the judge should attribute to both 
joint and undivided possession. If that is not possible because 
of the nature of the object or the right, or because of the danger 
of disputes and quarrels, the judge shall order that possession 
be held by a sequester, or that the quasi-possession of a right 
be suspended, until the petitory action is decided (Canon 1697). 

1660. A person who has been deprived of possession of an 
object or quasi-possession of a right in any manner by force or 
stealth, has a right to bring an action to regain possession 
(recuperande@ possessionis), or an action de spolo, or an excep- 
tion de spolio, against the author of the spoliation or against 
the detainer of the thing. This action is not admitted after the 
lapse of one year from the time when the party deprived of the 
possession had notice of the deprivation; the exception de spolio, 
however, is perpetual (Canon 1698). The law demands that 
one be alert to one’s rights and act promptly when others inter- 
fere with them. Wherefore, if one had notice of the deprivation 
of one’s possession or right and did not act within one year, the 
law will not admit one to bring action. If one should succeed 
in regaining possession by one’s own efforts, by force or in any 
other way, and then is sued by the one who had possession, he 
can raise the exception de spolio, asserting that he had a right 
to the possession because he had been illegally deprived of it; 
this exception may be urged by the first possessor at any time. 

1661. If the person who was deprived of possession is sued 
by the one who deprived him, he may cite the exception of 
spoliation, and, once he has proved the spoliation, he is not 
bound to make any further answer in the case until he has first 
been put into possession. The one who was deprived of pos- 
session need not prove anything else than the spoliation itself 
in order to regain possession (Canon 1699, §§ 1-2). For ex- 
ample, he need not prove that the object or property is his own, 


i 


246 A PRACTICAL COMMENTARY 


or that he has paid the rent,'ete., to be entitled to possession. 
Here Canon 1696 must be considered, which does not allow one 
who has obtained possession through foree or stealth, or who 
holds precarious possession, to plead his possession against the 
man from whom he robbed or stole or gratuitously borrowed 
some goods or property. Thus, if a person out of charity allows 
another to occupy a house or land, and, when he later on wants 
that person to move, the latter refuses and forces the landlord 
to put him out by force, the one forcibly removed cannot bring 
an action of spoliation, or cite an exception de spolio. 

Though the person deprived of possession when brought to 
court has the right to be reinstated in possession before the case 
proceeds, still the judge may at the instance of the other party 
or of the prosecutor decree that the reinstatement into the former 
condition be suspended, or that the object or person be in the 
custody of a sequester until the end of the trial of the case, if 
there is danger in the restitution of an object or of a right— 
e.g., danger of cruel treatment if the man demand against his 
wife the resumption of conjugal relations (Canon 1699, § 3). 

1662. Possessory trials are to be conducted by summoning 
only the adverse party, if the trial is instituted for the purpose 
of retaining or regaining possession; if there is question of the 
acquisition of possession (which the plaintiff never had) all who 
are interested in the matter must be summoned (Canon 1700). 


CHAPTER VII 
OF THE EXTINGUISHMENT OF ACTIONS 


1663. In civil cases both real and personal actions are ex- 
tinguished by prescription according to the rules of Canons 
1508-1512; actions, however, which deal with the state of per- 
sons (e.g., validity of religious profession, of sacred orders, or 
marriage), never become extinguished (Canon 1701). 

The limitation of actions in civil cases is governed by the 
laws on prescription, and one of these laws of the Code (Canon 
1508) rules that the laws of the respective nation are to be 
applied also with reference to ecclesiastical goods with a few 
exceptions enumerated in Canons 1509-1511. The statute of 
limitations (i.e., loss of right to bring suit for the enforcement 
of one’s rights) varies in the various States of the American 


CANONS 1699-1701 247 


Union both as to real estate and personal property. As to real 
estate, a long period of time is required (e.g., twenty years in 
the State of New York). The cases from the various states ‘‘all 
agree that, in order to perfect title by adverse possession, the 
possession must be actual, for a part of the land at least; that 
it must be visible or notorious; that it must be hostile or adverse ; 
that it must be exclusive; that it must be continued for the whole 
period required to bar an action for recovery under the statute 
of limitations. In some states, it is also necessary, by statute, 
that the adverse possessor should hold under color of title, and 
some statutes require that he must pay taxes during the running 
of the statute of limitations. Some states also hold that title 
by adverse possession cannot be acquired unless the occupant 
enters and holds possession in good faith’’ (Burdick, ‘‘Real 
Property,’’ ed. 1914, 631). 

With reference to personal property, the laws of the various 
states of the American Union do not recognize the civil law 
doctrine of the Roman and Canon Law on prescription. The 
American law—and the same applies to English law—does not 
extinguish the right of the other party and transfer title of the 
personal property to the one in whose favor the prescription 
has run (the debtor), but merely takes away the remedy (1.e), 
the right to institute action in court after the claim is barred 
by the lapse of the statutory period of limitations). ‘‘The length 
of time after which the statute of limitations becomes a defence 
varies largely in the different jurisdictions (states), and the 
student must consult the statutes of his own state. The period 
for one class of claims may not be the same as that for another 
class. Thus the period usually is shorter for oral and implied 
contracts than for written ones; for a written contract not under 
seal than for one under seal or a specialty; for a contract not 
attested than for one which is witnessed; and for a contract than 
for a judgment’’ (Childs, ‘‘Personal Property,”’ ed. 1914, 410). 
In the State of New York, for instance, a right of action on a 
contract (except a judgment or sealed instrument), an action 
to recover damages for an injury to property or a personal in- 
jury, to recover a chattel, to procure a judgment on account ot 
fraud, or to establish a will, must be begun within six years 
after the cause of action has accrued; an action to recover dam- 
ages for libel, slander, assault, battery, seduction, eriminal con- 


248 A PRACTICAL COMMENTARY 


versation, false imprisonment, malicious prosecution, or malprac- 
tice, must be begun within two years after the cause of action 
has accrued. 

1664. Every criminal action expires with the death of the 
cuilty person, or by condonation granted by the legitimate au- 
thority, or by the lapse of time fixed by the law for the bring- 
ing of criminal actions (Canon 1702). The time limits for the 
prosecution of offenders vary according to the different. offenses, 
as stated in Canon 1703. 

In the prosecution of offenses which are reserved to the judg- 
ment of the Sacred Congregation of the Holy Office (e.g., heresy, 
solicitation, absolution of one’s accomplice in sins of impurity), 
the ordinary time limits for prosecution do not apply; the Holy 
Office follows its own rules. In other offenses the guilty person 
can be prosecuted only within three years from the commission 
of the offense, with the following exceptions: 

(1) Actions for injuries (e.g., defamation, insult, striking, 
wounding) are extinguished by the lapse of one year; 

(2) Actions for qualified offenses against the sixth and 
seventh commandments are extinguished by a lapse of five years; 

(3) Actions for simony and for homicide are extinguished 
by a lapse of ten years (Canon 1703). 

1665. The term ‘‘qualified offenses’? against the sixth and 
seventh commandments is not explained in the Code, but it is 
interpreted by canonists to mean crimes against the sixth or the 
seventh commandment with which in the same act another crime 
is committed (e.g., in rape the violence done to another, in theft 
from a church the sacrilege, ete.).7° It is desirable to know exactly 
what erimes are meant, because the prescription of actions in 
the case of ordinary offenses against the two commandments, as 
in other crimes, bars prosecution after the lapse of three years. 
Eichmann seems to understand by ‘‘delicta qualificata contra 
VI et VII divinum preceptum’’ the offenses enumerated in 
Canons 2357, 2859, § 2, and 2354.11 Canon 1703 is largely taken 
from a Deeree of the Sacred Congregation of Bishops and Regu- 
lars, March 22, 1898,1? which enumerates the crimes for which 
twenty years are required before the prosecution is barred by 


10 Noval, ‘‘De Processibus,’’? 275; Vermeersch-Creusen, ‘‘Epitome,’’ 
III, n. 138. 

11 Prozessrecht des Cod. Jur. Can., 110, 

12 Acta S. Sedis, XXX, 688, 


CANONS 1702-1708 249 


prescription, and enumerates other crimes for which prosecution 
can be instituted at any time during the life of the offender, but 
the term ‘‘delicta qualificata’’ is not employed in that decree. 
The opinion of Eichmann has this in its favor, that the offenses 
which are to be considered ‘‘delicta qualificata’’ are determined, 
if the term is understood to apply to the offenses of Canons 2397, 
2359, § 2, and 2354, and no others. 

The periods of time mentioned in the prescription of actions 
for crimes is called tempus utile to indicate that the prescrip- 
tion does not run if the prosecutor was ignorant of the crime or 
was not able to act against the offender (cfr. Canon 39). 

1666. The Code does not speak of the prescription of pen- 
alties. Canon 2240 states that, for the prescription of a penal 
action, the same rules hold which are given in Canon 1703 on 
the prescription of crimes. 

There is some difficulty in harmonizing the law on the pre- 
scription of criminal actions with those Canons in which the 
law itself inflicts the penalty for an offense either in the form 
of ferende or late sententiw. First, with reference to the pen- 
alties ferende sententie it may be said that, though the law does 
inflict the penalty, that penalty does not bind the offender by 
the mere commission of the offense, but only after the competent 
judge has issued the condemnatory sentence. If the prosecutor 
neglects within the period of prescription to obtain the decree 
of execution (efr. Canon 1918), and to do what is in his power 
to execute the decree, the penalty becomes extinct with the lapse 
of the prescribed period of limitation of criminal actions. If the 
prosecutor was unable to prosecute or to obtain the execution 
(e.g., because the offender fled from the territory of jurisdiction 
of the court, hid himself, etc.), the period of prescription or 
limitation of the criminal action is suspended, and suit can be 
begun, or execution of the penalty can be urged, even after the 
lapse of the period of limitation. Secondly, with reference to 
the penalties latw sententiw, the law of prescription or limita- 
tion of criminal actions does not apply, because in virtue of the 
precept of Canon 2232 every penalty late sententia@, whether 
medicinal (censures) or vindicative (all other penalties except 
censures), binds the offender automatically in both the internal 
and the external forum. The only mitigation conceded by law 
with reference to the late sententiw penalties by Canon 2232 


250 A PRACTICAL COMMENTARY 


is that the offender is excused from execution of the penalty 
on himself until a declaratory sentence has been issued against 
him, if he cannot comply with the penalty without defaming 
himself, and provided that his offense was not notorious; con- 
sequently, nobody can demand of him to conform to the penalty 
in the external forum, unless the offense was notorious. It seems 
to follow from Canon 2232 that, if the prosecutor does not insist 
on the issuance of the declaratory sentence or on its execution 
before the period of limitation has expired, he cannot afterwards 
urge the execution of the penalty in the external forum, when 
the offense was not notorious (cfr. Vermeersch-Creusen, ‘‘ Epi- 
tome,’’ III, n. 189; Noval, ‘‘De processibus,’’ n. 274, who denies 
that there can be any prescription of action in late sententie 
penalties). Notwithstanding the prescription of the criminal 
action, Canon 2222 rules that the legitimate superior has not 
only the right but the duty to refuse to ordain a cleric whose 
worthiness is not certain, and he ean, for the sake of avoiding 
scandal, forbid a cleric the exercise of the sacred ministry, or 
remove him from office, with the observance of the prescribed 
formalities. His action in this case is not to be considered to 
have the nature of a penalty. 

1667. If the criminal action against a person is barred by 
prescription, the civil action for damages caused by the offense 
is not thereby barred. Furthermore, the fact that a criminal 
action is barred by lapse of time does not prevent the Ordinary 
from employing the remedies mentioned in Canon 2222, § 2 
(Canon 1704). The prescription of civil actions is regulated 
by Canons 1508-1512, which rules apply also to the barring of 
actions for damages caused by crimes. 

1668. The prescription in civil cases runs from the moment 
at which the action could legitimately have been brought; in 
criminal cases from the moment of the perpetration of the of- 
fense. If the offense extends or continues for some length of 
time, prescription begins to run only from the day on which 
one desisted from the criminal course. In habitual or continued 
offenses, the prescription does not begin to run until after the 
last act of the criminal conduct. When a person is prosecuted 
for some criminal act against which prescription has not yet 
barred the action, he is liable for the older offenses which are 
connected with the criminal act for which he is prosecuted, 


CANONS 1704-1708 201 


though prosecution ‘for those older offenses taken individually 
would be barred by prescription (Ganon 1705). 


TITLE VI 
OF THE INTRODUCTION OF A CASE 


CHAPTER I 


OF THE BILL OF COMPLAINT 


1669. To open a suit, the plaintiff must present to the com- 
petent judge a bill of complaint in which the object of the contro- 
versy is exposed, and the service of the judge is implored for 
the obtaining of the rights which he claims (Canon 1706). If 
the plaintiff does not know how to write, or is legitimately im- 
peded from presenting a written complaint, he may make an 
oral petition in court. In cases which are easier to investigate 
and which are of minor importance, and therefore to be decided 
without delay, it is also left to the discretion of the judge 
whether he wishes to accept an oral petition. In both cases, 
however, the judge shall order a notary to take down the com- 
plaint in writing, which document is to be read to the plaintiff 
and approved by him (Canon 1707). 

1670. The bill of complaint (libellum litis) by which the 
case is brought to court must contain the following points: 

(1) it must state the name of the judge before whom the 
case is brought, the object of the petition, and the name of the 
defendant ; 

(2) it must indicate, at least in general, the arguments on 
which the plaintiff relies to prove his allegations and his title to 
redress ; 

(3) it must be subscribed by the plaintiff or his proxy, give 
the day, month and year, the place of residence of the plaintiff 
or his proxy, or an address at which the plaintiff or his proxy 
wish to receive communications from the court (Canon 1708). 

The term libellum litis is taken from the Roman Law. Under 
the Common Law a case was introduced by a declaration; under 
the Code Law of the United States (in so far as the individual 
states have a Code), it is usually called the complaint, although 
a few states call it the petition. Besides the formal parts of 
the bill of complaint (e.g., name of the judge, name of the 


252 A PRACTICAL COMMENTARY 


defendant, signature of the plaintiff, date and place of residence 
of plaintiff), the statement of the facts which show the right of 
the plaintiff to redress through the ministry of the court and a 
precise statement of claim against the defendant must be con- 
tained in the bill of complaint. 

1671. After investigating its competency and the right of 
the plaintiff to sue (for the law deprives certain persons of the 
right to act as plaintiffs in court), the judge or court must as 
soon as possible either admit or reject the bill of complaint, 
giving in the latter case the reasons for so doing. If the decree 
of the judge rejecting the complaint bases its refusal on faults 
of the complaint which can be amended, the plaintiff ean offer 
to the same judge a properly amended bill of complaint; if the 
judge rejects the amended bill of complaint, he must explain 
the reasons for the new refusal. The party is at liberty to have 
recourse to the higher court within ten days against the re- 
jection of the bill of complaint. The higher court shall give a 
hearing to the party and the prosecutor (or the defensor vin- 
cult), and shall hand down a prompt ruling on the question of 
the rejection (Canon 1709). The ten days within which the 
plaintiff may have recourse to the higher court are called tempus 
utile to indicate that the recourse is not barred if through igno- 
rance or impossibility to act the ten days passed before recourse 
was taken (cfr. Canon 35). 

1672. If, within one month from the presentation of the 
bill of complaint, the judge has not issued his decree admitting 
or rejecting the same (as stated in Canon 1709), the party 
interested may insist that the judge issue the decree. If the 
judge is nevertheless silent, the party may, on the lapse of five 
days after his petition to the judge to take action, have recourse 
to the local Ordinary—if he does not act as judge in the case 
—or to the higher court to petition that the judge be forced 
to take action, or that another be appointed in his place to try 
the action (Canon 1710). The period of one month within which 
the judge must admit or reject the bill of complaint is called 
mensis continwus to indicate that no interruption of this interval 
is tolerated (cfr. Canon 35). It seems that, if the bishop him- 
self is the judge in the case and refuses to act (as stated in this 
Canon), the higher court to which the party can have recourse 
is the Holy See, for Canon 1625, § 1, rules that if a judge who 


CANONS 1709-1714 253 


is evidently competent refuses to try the case, he is to be forced 
by the local Ordinary, or, in the case of a bishop, by the Holy 
See.1? However, Canon 1625 speaks of an action to obtain 
damages and of an action for punishment of the bishop, and, 
while the recourse of the plaintiff to the higher court (arch- 
bishop’s court) against the adverse ruling of the bishop on the 
question of introducing a lawsuit is of the nature of an appeal 
against the judicial acts of the bishop, there seems to be no 
reason why the recourse cannot be taken to the ordinary court 
of appeals. | 


CHAPTER II 


OF THE SUMMONS AND THE NOTIFICATIONS OF JUDICIAL 
ACT 


1673. The bill of complaint or the oral petition having been 
admitted, the other party must be summoned to appear in court. 
The summons issued by a court to the defendant is called the 
vocatio in jus. If the contending parties appear before the 
judge of their own accord to plead their case, it is not necessary 
to issue the summons, but the secretary or clerk of the court 
shall make a note in the acts of the case that the parties came 
to court of their own accord (Canon 1711). 

1674. The summons is to be issued by the judge, and is to 
be written on the bill of complaint or joined to it. It is to be 
sent to the defendant, and, if there are several defendants, to 
each one. The plaintiff, moreover, must be notified by the court 
to appear on a specified day and at a fixed hour before the judge 
(Canon 1712). 

If the defendant is a person who does not have the free 
administration of the goods concerned in the controversy, the 
summons must be presented to that person who in his name 
must answer in the trial, according to the rules of Canons 1648-— 
1654 (Canon 1713). 

1675. Every summons is peremptory, and need not be re- 
peated, except in the case mentioned in Canon 1845, § 2—namely, 
when the judge wants to punish for contempt of court a party 
who ignores the first summons (Canon 1714). 

1676. The summons is to be presented to the party in a 
written form, which shall express the precept of the judge to 


13 Noval, ‘‘De Processibus,’’ n, 391. 


254 A PRACTICAL COMMENTARY 


the party to appear. It shall state the name of the judge who 
issues it, indicate at least in general terms the reason why the 
party is summoned, give the correct name and surname of the 
defendant, and state by whom he is sued; the place and time 
(i.e, the year, month, day and hour), where and when he is to 
appear, must be clearly indicated. The summons authenticated 
with the seal of the court must be subscribed by the judge or 
by his auditor and a notary (Canon 1715). The summons is to 
be made in duplicate, one copy being presented to the defendant 
and the other inserted into the acts of the case (Canon 1716). 

1677. The written summons is to be handed to the defendant 
personally by a messenger of the Curia wheresoever he finds 
him, if this manner of serving the summons is possible. The 
messenger may for this purpose enter the territory of another 
diocese, if the judge thinks it advisable and orders the messenger 
to do so. If the messenger does not find the person to be sum- 
moned in the place where he stays, he can leave the written 
summons with some person of the family or with a servant of 
the defendant, if that person is willing to accept the summons 
and promises to give the summons to the defendant as soon as 
possible ; otherwise, the messenger shall take it back to the judge 
in order that he may dispatch it in the manner provided in 
Canons 1719 and 1720 (Canon 1717). If the defendant refuses 
to accept the written summons, he is to be considered legitimately 
summoned (Ganon 1718). 

1678. If for reason of distance or other cause it is difficult 
to have the summons delivered to the defendant by messenger, the 
judge can order it to be transmitted by registered mail and a 
signed receipt obtained, or in any other manner which according 
to the laws and conditions of the respective country is consid- 
ered safest (Canon 1719). 

1679. Whenever after diligent inquiry it cannot be ascer- 
tained where the defendant stays, the summons by edict or pub- 
he announcement can take place. This is done by having the 
messenger post the document of the summons at the doors of 
the Curia in the manner of a public notice, which is to be left 
there for a length of time to be specified by the judge, and by 
inserting the summons in some public paper. If both cannot 
be done, either manner of public notice suffices (Canon 1720). 

1680. When the messenger leaves the written summons in 


CANONS 1715-1723 255 


the hands of the defendant, he must sign it marking the date 
and the hour at which he handed it to the defendant. He shall 
act in the same manner when he leaves the summons with a 
member of the family or a servant of the defendant, adding 
also the name of the person with whom he leaves the summons. 
If the summons is made by public notice, the messenger shall 
at the bottom of the notice mark the day and hour at which he 
posted the paper at the door of the Curia and how long it re- 
mained posted. If the defendant refuses to accept the summons 
offered to him by the messenger, the latter shall mark the day 
and hour, sign the summons and return it to the judge (Canon 
1721). 

The messenger shall make a written report of his work (in 
serving the summons) to the judge, and add his signature to 
the report, which is to be inserted in the acts of the case. It 
the summons was served by mail, the receipt shall be inserted 
in the acts (Canon 1722). 

1681. If the summons does not contain the points enumerated 
in Canon 1715, or was not legitimately served, both the summons 
and the acts of the procedure are null and void (Canon 1723). 

It is important that the summons contain the name of the 
defendant who is to appear in court in such a manner that there 
can be no mistake as to the identity of the person summoned. 
In the case of Froberger v. Editors (Redaktion) of Petrusblatter 
(at Treves) for libel committed by the periodical, the bishop’s 
court summoned the editors (Redaktion). In the appeal the 
Sacred Roman Rota decided that the summons were null and 
void, because not directed to a specified person (May 15, 1913; 
Acta Ap. Sedis, V, 286). If legal persons or bodies are to be 
summoned, the summoning of the administrators or directors 
generally suffices (Sacred Roman Rota, May 15, 1913; Acta Ap. 
Sedis, V, 285). If the summons does not state the precise time 
when the person summoned is to appear in court, the summons 
is invalid, but, if the person nevertheless appears in court, the 
trial is valid (Sacred Roman Rota, July 18, 1918; Acta Ap. 
Sedts, XI, 395). 

1682. The rules stated above for the summoning of the de- 
fendant shall be observed also in the other judicial acts, after 
they have been adapted to the diverse nature of the acts—for 
example, in notifying the parties concerned of the orders and 


256 A PRACTICAL COMMENTARY 


sentences of the judge, in summoning witnesses, and the like 
(Canon 1724). 

1683. When the defendant has been legitimately summoned, 
or the parties have of their own accord appeared in court, such 
act has the following effects: 

(1) the case ceases to be ares integra (i.e., the case is before 
the court, and the matter involved in the case is no longer a 
private affair, but one in which the public authority is inter- 
ested) ; 

(2) the case becomes proper to the judge or the court where 
the action has begun (e.g., if the plaintiff had the choice between 
the courts of the dioceses of A and X, the fact that the diocesan 
court of X, after complaint of the plaintiff, issued the summons 
to the defendant excludes any other court from judging the 
case in the first instance) ; 

(3) the jurisdiction of a delegated judge is rendered firm, 
so that it does not expire with the loss of jurisdiction of the 
one who delegated him; 

(4) preseription is interrupted, because from the moment 
property or rights are made a subject of litigation, the good 
faith essential to prescription ceases ; 

(5) the case begins to be pending, wherefore immediately 
the principle of law applies that pending the litigation nothing 
may be changed (Canon 1725). No change may thenceforth be 
made either in the complaint of the plaintiff, or in the allega- 
tions of his reasons for asking redress, or in the property or 
rights about which the litigation turns. 


TITLE VII 
OF THE CONTESTATIO LITIS 


1684. The object or matter of the trial is fixed by the con- 
testatio litis (the joining of issues), which consists in the formal 
denial by the defendant of the claim of the plaintiff made with 
the intention of litigating the case before the judge (Canon 
1726). No formalities are required for the joining of issues; 
it suffices that the parties appear before the judge or his dele- » 
gate, and that the complaint or petition of the plaintiff and the 


CANONS 1724-1728 207 


denial of the defendant, whereby the matter in dispute and the 
points of the controversy are clearly determined, are inserted 
into the acts of the case (Canon 1727). 

1685. In more complicated cases, however, when the com- 
plaint of the plaintiff is neither clear nor simple or in which the 
answer of the defendant abounds with difficulties, the judge 
should either ex officio or at the instance of either party sum- 
mon the parties to court for the purpose of specifying the para- 
graphs or counts (dubia), so that the issues over which the two 
parties litigate may be determined (Canon 1728). The entire 
trial is based on the complaint of the plaintiff and the answer 
of the defendant, and everything extraneous to the points raised 
in the joining of issues is to be excluded from the trial. 

What is called in Canon 1728 dubia concordanda, corresponds 
to the common-law joining of issues. ‘‘The issues are ascer- 
tained by requiring the alternate pleadings of plaintiff and de- 
fendant to be so constructed as to finally present some point 
distinctly affirmed on one side and distinctly denied on the 
other. When the point in controversy has in this way been 
ascertained, the pleadings are ended, and the parties are, in 
legal parlance, said to be at issue’’ (Phillips, ‘‘Principles of 
Pleading,’’ n. 48). The concordatio dubiorum, or formal plead. 
ing in an action, has the following three purposes: (1) to show 
to the court that there is, prima facie, occasion for judicial 
interposition; (2) to disclose and formulate any resulting con- 
tention inter partes; (3) to predefine the nature and scope of 
the trial. To promote the second of these purposes and facili- 
tate the production of an issue, all traversable (deniable) facts 
are required to be stated issuably—that is, in such a direct and 
positive form that the adverse party may traverse (deny) them. 
Pleadings must not be by way of recital, but must be direct 
and positive in form. In a complaint for assault and battery, 
the allegation should be that ‘‘the defendant made an assault’’ 
—not, ‘‘whereas the defendant made an assault.’’ The latter 
statement asserts nothing, and a denial of it will not make an 
issue. An alternative, or a hypothetical statement, is equally 
objectionable. An allegation that the defendant wrote and pub- 
lished, or caused to be written and published, a certain libel, 
does not positively charge the doing of either; and the state- 
ment that, af the plaintiff is the owner of a certain note, it was 


258 A PRACTICAL COMMENTARY 


obtained by fraud, does not positively allege fraud (cfr. Phillips, 
‘‘Principles of Pleading,’’ nn. 356-357). 

1686. If on the day appointed by the court for the joining 
of issues, a party, though properly summoned, does not appear, 
nor give a just excuse for absenting himself, he shall be declared 
cuilty of contempt of court, and the formulation of the counts 
shall be fixed by the judge ex officio at the request of the party 
who appeared. The party guilty of contempt of court shall 
immediately be notified by the court of the fixing of the counts 
in order that he may within the time allowed at the discretion 
of the judge make exceptions and objections to the counts and 
justify his absence. If the parties appear and agree on the 
points or counts about which they intend to litigate, and the 
judge on his part finds no objection to the issues, he shall so 
state in the decree by which the form of the issues is fixed. If, 
however, the parties disagree (e.g., if the defendant claims that 
the plaintiff has no legal basis for some of the counts, and there- 
fore demurs to their insertion in the case), or if the judge does 
not approve of the conclusions reached by the parties over con- 
troverted points, the judge himself shall by decree settle the 
disputed point. Once the forms of the points at issue (the so- 
called counts) have been fixed, they cannot be changed except 
by a new decree of the judge, which cannot be given except for 
a grave reason and at the request of one of the parties or of 
the prosecutor (or defensor vinculi) ; both parties—or, if one 
party has made the request, the other party—must be heard, and 
their reasons for objecting must be considered (Canon 1729). 

1687. Before the joining of issues has taken place, the judge 
shall not proceed with the examination of witnesses and the 
admission of other proofs except in the ease of contempt of 
court, or in case it becomes necessary to take the depositions of 
witnesses lest they die or move away, or when for any other 
reason it would be difficult to obtain their testimony later on 
(Canon 1730). 

1688. The joining of issues has the following effects: 

(1) The plaintiff may not change the bill of complaint unless 
the defendant consents and the judge for good reasons believes 
that the change should be admitted, but the defendant always 
has the right to obtain compensation for damages and expenses, 
if any are due to him, The bill of complaint is not considered 


CANONS 1729-1731 259 


changed, if the manner of proof is shortened or altered; if the 
claim or secondary claims are reduced; if the circumstances of 
a fact stated in the bill of complaint are illustrated, completed, 
or amended in such a way that the object of the controversy 
remains the same; if, instead of the object itself, the price, or 
interest, or something equivalent is asked; 

(2) the judge shall fix an appropriate interval of time within 
which the parties must procure and complete the proofs of their 
_ ease. This interval may be prolonged at the discretion of the 
judge, if the parties request a postponement, but he must see 
that the trial is not unduly protracted; 

(3) the possessor of the property or rights of another ceases 
to possess in good faith. Consequently, if the case is decided 
against him, he must restore not only the thing itself, but also 
the fruits which the thing has produced since the joining of the 
issues, and he is, moreover, obliged to repair any damages caused 
since that moment (Canon 1731). 

1689. The last paragraph states that the possessor of the 
property which is made the object of litigation in the bill of 
complaint and in the joining of the issues, ceases to be a pos- 
sessor in good faith. Does he become a possessor in bad faith, 
or a possessor in doubtful faith? The wording of the Code 
seems to hold him equivalent to a possessor in bad faith, for it 
makes him liable from the time of the joining of the issues, not 
only for the interest or profit, but also for damages. Never- 
theless, one may reasonably suppose that the Code means to 
make him liable for damages (loss by fire, theft, ete.) only in 
ease that he failed to take ordinary care to prevent such losses. 
For the person who was truly a possessor in good faith until 
the lawsuit started, cannot be said to become a possessor in bad 
faith by the mere fact that his right is called in question; at 
most, he may be compared to a possessor in doubtful faith. 
Besides, he virtually becomes a sequester (cfr. Canon 1674), and 
the sequester is required only to take such care of the property 
entrusted to him as a prudent man would take concerning his 
own (cfr. Canon 1675, § 2). 


260 A PRACTICAL COMMENTARY. 


TITLE VIII 
OF THE INSTANCE OF A SUIT 


1690. The instance begins with the joining of the issues; it 
ends in any of the ways in which a trial may be ended, but 
it can also be interrupted before, and may be even terminated 
by abatement (which is defined in Canon 1736) or by renuncia- 
tion (Canon 1732). 


INTERRUPTION OF LAWSUIT 


1691. If a litigating party dies, or changes his state (e.g., 
by becoming insane, by incurring excommunication, or by any 
other circumstance which deprives him of the ability or the 
right to act in court), or if a party loses the office by reason 
of which he acted in the case, the following rules obtain: 

(1) if the case has not yet been closed, the instance or law- 
suit is interrupted until the heir of the deceased or the successor 
resumes the litigation ; 

(2) if the case has been closed (causa conclusa), the lawsuit 
is not interrupted, and the judge must continue the procedure, 
summoning the proxy (if there be one) or otherwise the heir 
or successor of the deceased (Canon 1733). 

Canon 1860 explains what is meant by causa conclusa: the 
closing of the case, in so far as the parties are concerned, takes . 
place when the parties have declared at the inquiry of the judge 
that they have no more to say in proof or defence of their case, 
and the judge has issued a written statement that the case is 
closed. 

1692. If there is a controversy between two clerics about the 
right to a benefice, and one of them dies while the case is pend- 
ing, or one resigns the benefice, the lawsuit is not interrupted, 
but the prosecutor (promotor justttw) conducts the case against 
the survivor in behalf of the liberty of the benefice or of the 
ehurch. The prosecutor does not enter the case, if the benefice 
is one of those which the bishop ean freely confer (1.e., without 
interference of a patron or other person having a right to desig- 
nate, elect, etc., the incumbent), and if the bishop prefers to 


give it to the surviving party, as though he had won the case 
(Canon 1734). 


CANONS 1732-1738 261 


If a proxy or a guardian ceases to act for his client, the law- 
suit remains interrupted until the party or the persons con- 
cerned have appointed a new proxy or guardian, or have declared 
that they henceforth will continue personally the trial of the 
ease (Canon 1735). 


ABATEMENT OF THE LAWSUIT 


1693. If, without the intervention of any impediment, no 
procedural act has been done in the court of the first instance 
for two years or in the court of appeal for one year, the lawsuit 
abates; in the second case (in court of appeal), the sentence 
which is contested in the appeal becomes a res judicata (cfr. 
Canon 1902)—that is, an adjudged case from which there is no 
appeal (Canon 1736). 

The abatement or discharge of a lawsuit is effective apso 
jure, and holds good against all litigants, even minors and other 
persons having the privilege of minors; and if the same matter 
is again brought to court, the exception of res judicata must be 
raised against it ex officio, because the law admits no further 
litigation about the same matter between the same persons. If 
a proxy or a guardian has been the cause of the discharge of 
the lawsuit, the party appointing the proxy (the minor, church, 
or other legal person, represented by a guardian, administrator, 
ete.) can sue this person for damages, and he will be forced to 
pay unless he can prove that he was free from guilt (Canon 
1737). 

1694. The discharge of the action wipes out the acts of the 
process, but it does not destroy the acts of the cause itself. The 
latter can have their force in another instance, provided the new 
trial is between the same persons and over the same matter. 
As to outsiders, the acts of the case have no other force or effect 
than of documents (Canon 1738). 

As the acts of the procedure are wiped out, one can never 
again attack the sentence for reason of procedural errors (¢.g., 
the competency of the judge, the nullity of acts because of the 
lack of formalities required under pain of nullity, etc.). The 
acts of the case remain (e.g., proofs, admissions, denials, etc.), 
and, if a party after the discharge of the lawsuit gets the favor 
or a new trial, the acts of the case retain their original force, 


262 A PRACTICAL COMMENTARY 


if the case is between the same persons and over the same 
matter. For all other persons except the contending parties, 
the acts of the case are merely documents: they may use them 
to prove something in their favor, and can therefore produce 
them in some other case, but the sentence in a case cannot 
determine rights except between the contending parties.™ 

In the case of the abatement of a lawsuit, each litigant shall 
bear the expenses which he incurred in connection with the case 
discharged (Canon 1739). 


RENUNCIATION OF THE INSTANCE AND OF PROCEDURAL ACTS 


1695. The plaintiff may renounce the instance at any stage 
and in any degree of the trial; likewise, both the plaintiff and 
the defendant may renounce either all or only some of the acts 
of procedure. For the validity of the renunciation it 1s necessary 
that it be made in writing, that it be signed by the party or by 
his proxy empowered thereto by special mandate, that it be made 
known to the other party and be accepted by him, or at least 
not attacked by him, and that it be admitted by the judge 
(Canon 1740). Once the renunciation has been admitted by 
the judge, it has, in so far as the acts which one has renounced 
are concerned, the same effect as the discharge or abatement of 
a lawsuit. The renouncing party is obliged to pay the costs of 
the acts which he renounces (Canon 1741). 

Canon 1740 is not very explicit on the point whether one 
may relinquish the present lawsuit and retain the right to bring 
the same action again at a later date. Writing before the Code, 
Lega says that one can abandon the present case in court, be- 
cause, for example, one realizes that at present one does not 
have the strong evidence of one’s case which one expects to be 
able to get later on, and reserve to oneself the right to sue again. 
By this renunciation the parties are placed in the same position 
as they were before the lawsuit started.* 

Probably it is possible under the Code to renounce the present 
suit without renouncing the right which one claimed in bringing 
the suit. The Lex propria of the Sacred Roman Rota and the 
Signatura Apostolica, Canon 34, states that the plaintiff can 


14 Lega, ‘‘De Judiciis Ecclesiasticis,’’? I, nn. 389-398. 
15 De judicus Ecclesiasticis, I, n. 614. 


CANONS 1739-1742 263 


renounce either the instance, or the litigation itself, or the acts 
of the case.° Though it does not seem just that the defendant 


16 Const. Ap. Pit X, June 28, 1908; De Curia Romana. 


should be exposed to the danger of being molested a second time 
by being brought to court over the same matter by the same 
plaintiff, still the defendant can prevent this if he so desires, 
for Canon 1740 rules that no renunciation is valid unless the 
defendant accepts or at least does not oppose it; moreover, the 
defendant’s expenditures have to be paid by the plaintiff who 
abandons the lawsuit. 


dip ENE OL PB. 


OF THE INTERROGATION OF THE PARTIES IN COURT 


1696. The judge is obliged to interrogate the parties for the 
purpose of establishing the truth of a fact which the public 
interest demands should be established beyond doubt (e¢.g., a 
fact involving the validity of marriage, sacred ordination, etc.). 
In other cases, the judge may question one of the contending 
parties, not only at the request of the opposing party but even 
ex officio, whenever some proof advanced needs elucidation. The 
judge may question the parties at any stage of the trial before 
the case is closed. After the closing of the case new proofs 
may not be proposed by the parties except under the circum- 
stances specified in Canon 1861 (Canon 1742). 

1697. The parties are obliged to answer the legitimate ques- 
tions of the judge and to tell the truth; they are not bound to 
answer questions about an offense committed by them. (The law 
does not oblige one to be one’s own accuser; confession in court 
may be. made, but it must be voluntary.) If a party has been 
legitimately questioned and refuses to answer, the judge shall 
decide the significance of the refusal, whether it is justified, 
and whether it is or is not to be held equivalent to an admis- 
sion. If a party who is obliged to answer refuses, or answers 
but is found afterwards to have told a lie, he shall be punished 
by exclusion from all legal ecclesiastical acts (cfr. Canon 2256) 
for a time to be determined according to the circumstances by 
the judge. If the party had taken the oath to declare the truth 
before the interrogation, he shall be punished with a personal 


264 A PRACTICAL COMMENTARY 


interdict, if he is a lay person, or with suspension, if he is a 
cleric (Canon 1743). 

1698. The oath to tell the truth cannot be administered to 
the accused by the judge in criminal cases; in civil cases he 
must demand the oath from the parties whenever the public 
welfare is at stake; in other cases, the administration of the oath 
is left to the discretion of the judge (Canon 1744). In the 
former Canon Law, after the joining of the issues, the parties 
had to take the oath called juramentum de calumnia (1.¢., a 
solemn attestation that the parties. were contesting their re- 
spective rights in good faith). Hither party in a case could 
request the judge—if the latter did not do so of his own accord 
—to demand the oath of the opposing party.’” If the plaintiff 
refused to take the oath de calumnia, he lost the right to sue 
in the ease, and, if the defendant refused, he was considered to 
have admitted his liability. Schmalzgriiber discusses the general 
rule on loss of the suit by the refusal of the oath de malitia, 
and points out some exceptions.** The Code modifies the former 
law by leaving it to the discretion of the judge whether he will 
administer the oath to the parties, and obliges him to administer 
it only in eases in which the public welfare is at stake. 

1699. Both the plaintiff and the defendant, as also the prose- 
eutor and the defensor vinculi, can submit to the judge points or 
questions (called positiones), on which they desire him to ques- 
tion a party. In the drawing up, admitting, and proposing of 
these questions to a party, approximately the same rules are 
to be followed which are laid down for the questioning of wit- 
nesses in Canons 1773-1781 (Canon 1745). 

Contrary to the practice in the secular courts of the United 
States, the parties are questioned, not by the counsel of the 
opposing party, but by the judge. Ordinarily, the judge does 
not of his own accord question the parties, unless the litigation 
concerns matters of not merely private but public interest, but 
he may question them if he finds it necessary to elucidate some 
proof adduced (efr. Canon 1742). As a rule, the judge ques- 
tions the parties only at the request of the opposing party, or, 
if the prosecutor or defensor vinculi takes part in the trial, 


17 Decretales Gregorti IX, e. 7, De juramento calumnie, lib. IT, tit. 7. 
18 Jus Ecclesiasticum, III, title VII, n. 15; Liber Sextus Bonifacu VIII, 
ce. 1, De Juramento calumnie, lib. U, tit. 4. 


CANONS 17438-1747 265 


also at his request. The points or questions (positiones), which 
one party wishes the other to answer, must be submitted to the 
judge, who examines them, and then decides whether he shall 
or shall not put them to the other party, or whether he shall 
alter them. 

1700. The parties must appear in person before the judge to 
take the oath and answer the questions, except the persons men- 
tioned in Canon 1770, §1, nn. 1-2 (Canon 1746). Cardinals, 
bishops, and distinguished persons exempted by the law of their 
country from testifying in court, can appoint a place where 
they choose to be heard; sick persons and nuns (Sisters with 
solemn vows) ate to testify at home (cfr. Canon 1170). Canon 
1316 rules that the oath which law requires or permits cannot 
be validly taken by proxy. 


TITLE X 


OF PROOFS 


1701. No proof is required for the following: 

(1) notorious facts, which are such by either notoriety of 
law or notoriety of fact, in accordance with Canon 2197, nn. 2-3; 

(2) facts which are presumed by law; 

(3) facts asserted by one of the contending parties and 
admitted by the other, unless either the law or the judge never- 
theless demands proof (Canon 1747). 

The facts enumerated in Canon 1747 are the same as those 
of which the secular courts of the United States take ‘‘ judicial 
notice’’ in trials, and therefore do not demand proof. With 
regard to confessions or admissions in court, the judge may at 
his diseretion demand that the adverse party prove what was 
admitted or confessed, and, in criminal cases and those which 
concern the public welfare, admission made in court does not 
suffice to relieve the adverse party of the obligation to prove 
the facts admitted (cfr. Canon 1751). On account of the im- 
portance of these cases, the Church is not satisfied with the 
admission or confession, but demands proof. In the criminal 
law of the various states of the United States, a confession in 
court is sufficient in itself for conviction, even in capital cases 
(cfr. Hughes, ‘‘Law of Evidence,’’ 1907, p. 44), In some 


266 A PRACTICAL COMMENTARY 


criminal trials in ecclesiastical courts, the Ordinary, upon the 
confession of the offender, may dismiss him with a rebuke and 
penance, instead of instituting criminal proceedings (cfr. Canon 
1947). 

1702. The burden of proof rests with the person who makes 
an assertion. If the plaintiff does not prove his ease, the de- 
fendant is freed from liability in connexion with the charge 
made against him (Canon 1748). The burden of proof rests on 
the plaintiff with regard to the claims made in his bill of -com- 
plaint; it rests on the defendant with regard to the exceptions 
and counter-charges which he makes. If a defendant merely 
denies the claims of the plaintiff, he need not prove that he 
owes nothing to the plaintiff or that he is not guilty; the plain- 
tiff has to prove the claim or the charge. 

Proofs which seem to be asked to delay the trial (e.g., the 
examination of a witness who is far away, or whose domicile 
is unknown, or the examination of a document which cannot be 
speedily procured), shall not be admitted by the judge, unless 
these proofs seem necessary, because other proofs are lacking 
or are insufficient (Canon 1749). 


CHAPTER I 


OF THE CONFESSION OF THE PARTIES 


1703. An assertion of a fact, made in writing or orally before 
the judge by one party against himself and in favor of the 
opponent, whether made of his own accord or in answer to a 
question of the judge, is called a judicial confession (Canon 
1750). 

In the case of some private affair, in which the public welfare 
is not concerned, the judicial confession of one party, made 
freely and deliberately, relieves the other party from the burden 
of proof (Canon 1751). 

A party who has made a confession in court, cannot contra- 
dict his own confession, unless he does so immediately, or proves 
that it lacks the conditions specified in Canon 1750, or was due 
to a mistake of fact (Canon 1752). 

That the retraction of one’s confession must be made imme- 
diately (in continent), is a rule taken from the former law, and 
the interpretation of some canonists held that it had to be made 


CANONS 1748-1754 267 


before the notary acting as clerk of the court consigned the con- 
fession to writing. Cardinal Lega (De Judictis, I, n. 667), how- 
ever, remarks that it is left to the judge to decide, with due con- 
sideration of the condition of the person, the interval elapsed and 
the nature of the fact admitted, whether the retraction of the 
confession is still to be considered made in continentt. 

1704. A confession, whether written or oral, which is made 
to one’s opponent or to others outside the court, is called extra- 
judicial. If this confession is introduced in court, it is left to 
the discretion of the judge, after considering all the attendant 
circumstances, to determine its weight (Canon 1753). 

1705. The Code does not speak of a confession or admission 
in court, which is only partly in favor of the opponent and partly 
against the party making the admission. Since it is not a con- 
fession pure and simple, it does not come under the rules here 
specified in the Code. Such so-called qualified admissions are 
rather a method of defence (e.g., if a party admits he owes an- 
other the sum of money which he demands, but that also the oppo- 
nent owes him a debt which offsets his claim; again, in a suit for 
injuries, the defendant may admit that he inflicted the injury, 
but did so by accident, in self-defence, ete.). It is evident that a 
fact admitted by the defendant needs no further proof, but, by 
pleading exceptions and other defences, the defendant has the 
burden to prove the facts which he pleads in his defence.*® Though 
proof seems superfluous if a fact is admitted by the opponent, 
the Code nevertheless admits judicial confession as full proof 
only in private affairs; in cases in which the public welfare 1S 
concerned (e.g., validity of marriage, sacred orders, punishment 
of criminals, ete.), judicial confession does not relieve the op- 
ponent from the necessity of proving the case. 


CHAPTER II 


OF WITNESSES AND TESTIMONY 


1706. Proof through witnesses is admitted in all cases, but 
their admission is subject to the direction of the judge in ac- 
cordance with the method fixed in the following Canons (Canon 
1754). 


19 Lega, ‘‘De Judiciis Ecclesiasticis,’’? I, nn. 446-459; Noval, ‘‘De 
Judiciis,’’ nn. 449-455. 


268 A PRACTICAL COMMENTARY 


1707. Witnesses legitimately questioned by the judge must 
answer and tell the truth. Besides the priest and others who 
have knowledge of sacramental confessions (cfr. Canon 1757, n. 
3, b), the following persons are exempted from the obligation to 
answer : 

(1) pastors and other priests in connection with those mat- 
ters which have been made known to them by reason of the sacred 
ministry outside of sacramental confession; civil magistrates, 
physicians, midwives, lawyers, notaries and others who are also 
bound to official secrecy by reason of advice given in reference to 
affairs connected with this secret ; 

(2) persons’ who fear that their testimony may occasion 
defamation, dangerous vexations or other very grave evils for 
themselves, or for their blood-relations or relations by marriage 
in any degree of the direct or in the first degree of the collateral 
line (Canon 1755, § § 1-2). 

Witnesses who, in answer to a legitimate question of the 
judge, knowingly affirm a falsehood or conceal the truth, shall 
be punished in accordance with Canon 1743. With the same 
penalty are to be punished all who presume to induce a witness 
or an expert by promises or in any other manner to give false 
testimony or to conceal the truth (Canon 1755, § 3). 

This exemption of persons from the obligation to answer the 
judge when asked to testify to certain facts is also recognized in 
the laws of the United States in the ease of ‘‘ privileged communti- 
eations.’’ Generally, the laws of the various states of the Union 
admit four classes of privileged communications: (1) profes- 
sional communications; (2) political communications; (3) ju- 
dicial communications; (4) social communications. ‘‘At the 
common law, there was only one class of professional communi- 
cations privileged. This class comprised communications be- 
tween attorneys and their clients. By statute, however, other 
classes have been added. These include communications between 
physicians and their patients, and communications between 
spiritual advisers and laymen. In reference to attorney and 
client, Greenleaf says: ‘The protection given by the law to such 
communications does not cease with the termination of the suit, 
or other litigation or business, in which they were made; nor is 
it affected by the party’s ceasing to employ the attorney and 
retaining another; nor by any other change of relations between 


CANONS 1755-1756 269 


them; nor by the death of the client. The seal of the law, once 
fixed upon them, remains forever, unless removed by the party 
himself in whose favor it was there placed’ ’’ (Hughes, ‘‘ Law 
of Evidenee,’’ 288). 

As to physicians, it is essential that the purpose of the com- 
munication is to alleviate or cure. Communications between 
physicians attending the same patient are privileged, provided 
that such communications pertain to his condition or treatment. 
Physical defects or degrading marks on the patient may not be 
disclosed by the physician, nor may he disclose the nature of the 
ailment or disease of the patient, nor are his prescriptions ad- 
missible in evidence. The New York statute includes registered 
nurses in the ranks of those whose professional information is 
privileged. 

At common law, communications between spiritual advisers 
and laymen are not privileged, but in many states of the United 
States such communications are privileged by statute. The New 
York statute, for instance, rules: ‘‘A clergyman, or other minis- 
ter of any religion, shall not be allowed to disclose a confession 
made to him in his professional character, in the course of disci- 
pline enjoined by the rules or practice of the religious body to 
which he belongs’’ (Clevenger, ‘‘New York Practice,’’ Civil 
Practice Act, 1920, in effect Oct. 1, 1921, § 851). The Canon 
Law goes further in protecting communications between a priest 
and a person who entrusts a secret to the former in his character 
of a minister of religion; it protects such confidences in the same 
manner as the civil law protects communications between attor- 
ney and client. 

As to the group of persons mentioned in Canon 1755, n. 2, 
who are excused from giving testimony under the circumstances 
there described, the Canon Law is more liberal than the civil law. 
The latter does not exempt blood-relations and relations by mar- 
riage from testifying in the trials of their relatives, even though 
it may be a great hardship to give testimony. The only exemp- 
tion in the law of the United States concerns confidential com- 
munications between husband and wife. 


ARTICLE I—PERSONS WHO CAN BE WITNESSES 


1708. All persons may be witnesses, unless they are explicitly 
rejected by the law either absolutely or partly (Canon 1756). 


270 A PRACTICAL COMMENTARY | 


Witnesses rejected by the law are: (1) unfit, (2) suspected, 
(3) disqualified. 

(1) Persons under the age of puberty and weak-minded per- 
sons are rejected as unfit (non idoner) to give testimony. 

(2) The following persons are rejected as suspected: (a) 
excommunicatr, perjurers, and persons who have been branded 
with infamy by a declaratory or condemnatory sentence; (b) 
persons who are of such vile character that they are not con- 
sidered trustworthy; (ce) public and bitter enemies of a party. 

(3) The following persons are disqualified from acting as 
witnesses : 

(a) Those who are the parties in the case or who take the 
place of the parties (e.g., the guardian in the case of his ward, 
the superior or administrator in the case of his community or 
pious institute which he represents in court), the judge and his 
assistants, the attorney and others who assist or have assisted the 
parties in the same case; 

(b) priests in reference to all things of which they gained 
knowledge from sacramental confession, even though they have 
been freed from the seal of confession (by the will of the peni- 
tent) ; even whatever has been heard by anyone and in any man- 
ner on the occasion of a confession (e.g., persons waiting to go to 
confession may have heard some words of the penitent or the 
confessor) cannot be accepted even as an indication of the truth; 

(c) husbands in the case of their wives and vice versa, blood- 
relations and relations by marriage in the ease of persons related 
to them in any degree of the direct line and in the first degree 
of the collateral line, except in cases which deal with their civil 
or religious state the knowledge of which cannot be had from 
other sources, and when the public welfare demands that the 
truth be ascertained (Canon 1757). 

1709. Unfit and suspected witnesses can be examined if the 
judge issues an order stating that he thinks it advisable to do so; 
their testimony, however, shall be of value merely as an indica- 
tion of and a help towards proof of the case. As a rule such per- 
sons shall be examined unsworn (Canon 1758). 

‘*At common law the following classes of persons were in- 
competent to testify: (1) parties to the record (1.e., plaintiffs 
and defendants); (2) persons pecuniarily interested; (3) per- 
sons mentally incompetent or otherwise incapacitated; (4) per- 


CANONS 1757-1758 271 


sons convicted of infamous erimes; (5) persons who lacked in 
religious belief; (6) the husband or wife of a party to the suit, 
except where a crime was charged by one spouse against the 
other’? (Hughes, ‘‘Law of Evidence,”’ p. 265). By statute gen- 
erally, both in England and in the United States, the rule 
excluding parties to the record from testifying has been abol- 
ished, except that in England it still obtains in criminal cases. 
To render a witness disqualified for reason of pecuniary interest 
in the suit, it was necessary that his interest was favorable to 
the party who calls him as witness. 

The common law rule has been abolished by statute both in 
England and in the United States. The only survival of the 
rule excluding persons pecuniarily interested is that a beneficiary 
under a will cannot be a witness to the will, or testify m an action 
against the executor or administrator of a deceased person. 
Under the-class of mentally incompetent persons are included 
insane persons, idiots, infants of tender years and intoxicated 
persons. An insane person who understands the nature of an 
oath, and is sane as to the facts concerning which he is called 
to testify, is a competent witness. An insane person may have 
lucid intervals, but an idiot (using the term in the strict sense) 
never has. As to intoxicated persons, the competency to testify 
rests with the sound discretion of the court. The same applies to 
persons who indulge in the use of stupifying drugs (opium, etc.). 
As to infants, there is no law disqualifying them from acting as 
witnesses prior to a certain age. Children between five and six 
years of age have been admitted as witnesses. It rests mainly 
with the trial judge to determine the competency of the child by 
examination in open court. 

At common law persons who had been convicted of infamous 
crimes were incompetent witnesses. These crimes were treason, 
felony and the crimen falsi—that is, perjury, subornation of 
perjury, suppression of testimony by bribery, or conspiracy to 
procure the absence of a witness (cfr. Hughes, ‘‘Law of Evi- 
dence,’’? p. 276). The disqualification has been removed by 
statutes, but the conviction for the mentioned crimes may be 
shown in court for the purpose of lessening the eredibility of 
the witness. 

The disqualification of persons lacking religious belief was 
based on the theory that the only guarantee of truthfulness was 


272 A PRACTICAL COMMENTARY 


the oath. Both in England and in the United States the common 
law rule has been greatly modified. 


ARTICLE II—INTRODUCTION, NUMBER AND EXCLUSION OF WITNESSES 


1710. Witnesses are introduced by the parties. They may 
also be introduced by the prosecutor and the defensor vinculi, 
if they take part in the trial. The judge may ez officio introduce 
witnesses in cases of minors and others who are held equivalent 
to minors in law (e.g., a parish, hospital, ete.), and generally 
whenever the public good requires it. The party who introduced 
a witness can renounce his right to have him testify, but the 
opponent may demand that, despite this renunciation, such wit- 
ness be examined (Canon 1759). 

1711. If some person appears of his own aurea to testify in 
court, the judge may admit or reject his testimony as he sees fit. 
Iie must reject a witness who offered his services of his own 
accord, if the judge thinks that he appeared only to delay unduly 
the trial or to obstruct in any manner justice and truth (Canon 
1760). 

1712. If proof through witnesses is desired, their names and 
domicile shall be indicated to the court, and the points or articles 
on which the witnesses are to be interrogated must be also sub- 
mitted to the court. If the foregoing has not been done at least 
on the last day which has been peremptorily fixed by the judge, 
it is considered that the party has withdrawn his request for the 
summoning of the witnesses (Canon 1761). The judge has the 
right and duty to prevent the introduction of too large a number 
of witnesses in a trial (Canon 1762). 

1713. The parties must make known to each other the names 
of the witnesses before their examination begins; if the judge 
prudently believes that this cannot be done without great diffi- 
culty, the names of the witnesses must be made known by the 
parties to each other at least before the publication of their testi- 
mony (Canon 17638). 

1714. Witnesses must be rejected ex officio, if it is evident to 
the judge that they are forbidden to testify, without prejudice to 
the right of the judge (cfr. Canon 1758) to admit at his disere- 
tion witnesses called unfit and suspected. At the request of the 
opponent, witnesses must be rejected if a just reason for their 
rejection is proved; this exclusion of witnesses is called repro- 


CANONS 1759-1767 273 


batio persone testis. A party cannot object to the admission of a 
witness whom he himself presented, unless a new reason for 
objecting to him has come up after he had presented him; he 
may, however, object to his testimony. The objection to a wit- 
ness must be raised within three days after the names of the 
witnesses have been made known to the party, and objection 
made at a later date shall not be heard, unless the party proves 
or at least affirms under oath that he did not previously know of 
the defect of the witness. The judge should postpone the discus- 
sion on the objection to a witness till the end of the trial, unless 
a presumption of law stands against a witness, or his defect is 
notorious, or the reason for the objection can be immediately and 
easily proved, or could not be proved later on (Canon 1764). 
1715. The summoning of witnesses is to be done through the 
medium of the judge, who will issue a decree for this purpose, 
and the summons are to be served the witnesses in the manner 
prescribed in Canons 1715-1723 (Canon 1765). A witness who 
has been duly summoned, must obey or make known to the judge 
the reason for absenting himself. A disobedient witness who 
does not appear without a legitimate excuse, or who appears but 
refuses to answer, or to take the oath, or to sign his name to his 
testimony, may be punished by the judge with appropriate pen- 
alties and, in addition, be fined in proportion to the damage 
which his disobedience may cause to the parties (Canon 1766). 
If a witness lives in another diocese, the law provides that the 
judge has a right to invoke the assistance of the court of that 
diocese to summon and examine the witness (cfr. Canon 1570). 


ARTICLE IIJ—OF THE OATH OF WITNESSES 


1716. Before testifying, a witness must take the oath that he 
will state the whole truth and nothing but the truth, without 
prejudice to the precept of Canon 1758. The parties or their 
proxies may be present when the oath is administered to the wit- 
nesses, without prejudice to the ruling of Canon 1763 (when the 
judge does not deem it advisable to let the parties know who the 
witnesses are). The witnesses may be dispensed from taking the 
oath, if there is question of mere private rights, and both parties 
to the case agree. But even when the oath is not demanded of 
the witnesses, the judge shall remind them of their grave obli- 
gation to tell the truth (Canon 1767), 


274 A PRACTICAL COMMENTARY 


The object of the law in requiring an oath is to arrive at the 
truth by binding the conscience of the witness. In the Ohio case 
of Clinton v. State, Justice Ashburn said: ‘*'The purpose of the 
oath is not to call the attention of God to the witness, but the 
attention of the witness to God; not to call upon Him to punish 
the false-swearer, but on the witness to remember that He will 
surely do so. By thus laying hold of the conscience of the wit- 
ness and appealing to his sense of accountability, the law best 
insures the utterance of truth.’’ Religious belief is not, as a 
rule, made a test of the qualification of a witness in the various 
states of the United States. Two states, Maryland and Arkansas, 
make theological belief in God essential to the competency of a 
witness. The other states make provision that a witness who has 
conscientious scruples against taking an oath, may make a solemn 
affirmation. Where a witness testifies without being sworn or 
affirming, and the omission is not discovered until after the ver- 
dict is rendered, the verdict may be set aside. If the omission is 
discovered before the jury retires, and no objection is made, the 
error will be deemed waived. The rule that witnesses must tes- 
tify either under oath or affirmation, apples also to infants. The 
statutes of some of the states of the Union allow infants under 
ten years of age to testify without taking the oath. 

1717. Though the witnesses have taken the oath to tell the 
truth, the judge on the conclusion of the examination of a wit- 
ness, may if he deems it prudent demand an oath on the truth 
of the statements made, either in reference to all the points or 
some of them. This step is taken whenever the gravity of the 
affair and the circumstances of the testimony given seem to de- 
mand it (Canon 1768). : 

1718. The witnesses may also be bound under oath to keep 
the secret with reference to the questions proposed to them and 
the answers given by them until the time that the acts and proofs 
are made public; the judge may even bind them to perpetual 
secrecy if the testimony is of such a nature (cfr. Canon 1623) 
that defamation, discord, or other grave evils are feared from its 
publication (Canon 1769). 


ARTICLE IV—OF THE EXAMINATION OF WITNESSES 


1719. The witnesses are to be examined in the place where 
the court sits. From this general rule are excepted: 


CANONS 1768-1772 2795 


(1) Cardinals, bishops, and illustrious personages who by the 
law of their country are exempted from the obligation to appear 
before the judge for the purpose of testifying. All these persons 
may choose a place where they wish to testify, but must notify 
the judge of this choice; 

(2) Persons who are prevented by illness, or some bodily or 
mental impediment, or by their state of life (e.g., nuns), from 
going to the place where the court sits. These are to be examined 
at home; 

(3) Persons who are staying outside the diocese and cannot 
without great inconvenience return to the diocese and go to 
court. These are to be examined by the court of the place where 
they stay, in accordance with Canon 1570, § 2, the judge in the 
case forwarding the questions and instructions according to 
which the witness is to be examined; 

(4) Persons who live within the diocese, but at such a great 
distance from the place where the court sits that they cannot 
without great expense go to the judge nor the judge to them. 
In this case the judge must appoint some worthy and qualified 
priest in the vicinity of the witness, who shall, with the assistance 
of another person acting as actuary, hold the examination of 
these witnesses according to the questions and pertinent instruc- 
tions sent by the judge (Canon 1770). | 

1720. The parties cannot be present at the examination of the 
witnesses, unless the judge believes that their presence is desir- 
able (Canon 1771). 

Witnesses must be examined individually and separately. It 
is left to the discretion of the judge after the giving of testimony 
to confront the witnesses with one another or with a party in 
court (Canon 1772, §§ 1-2). 

This may be done when all the following conditions concur: 

(1) if the witnesses disagree among themselves or with the 
party in a serious matter which concerns the essence of the case ; 

(2) if there is no other easier way to discover the truth; 

(3) if there is no fear of scandal or discords arising from 
the confronting of witnesses (Canon 1772, § 3). 

The general public is not admitted to the courtroom during 
ecclesiastical trials, for it is considered that the ends of justice 
for both plaintiff and defendant are best attained by the exclud- 
ing of all who are not necessary in the case. Under the common law 


276 A PRACTICAL COMMENTARY 


the trials are public, and the various states of the United States 
demand a public hearing. It has, however, been deemed neces- 
sary to bar the general public from certain cases in which the 
evidence is of a scandalous character, and some states have en- 
acted statutes by which spectators (especially minors) may be 
excluded in actions for rape, seduction, abortion, criminal con- 
versation, and the like. <A similar statute has been enacted in 
England. 

According to the Canon Law, the examination of witnesses is 
to be done in such a manner that, while one witness testifies, the 
other witnesses are removed from the courtroom. ‘This is also 
the general practice in the courts of England and the United 
States, but the separation of the witnesses is not demandable as 
of right, but rests with the sound discretion of the court. In a 
few states the adverse party has the right to demand the separa- 
tion. The parties, however, have the right to be present in court 
during the entire trial, and in an Indiana case (Larue v. Russell) 
Justice Frazer said: ‘‘This proceeding [of excluding one of the 
parties from the court room during part of the examination of 
witnesses] is probably without a precedent. The right of a party 
litigant to be present during the trial of his cause, that he may 
be heard in his own behalf, has been so long accorded by uni- 
versal custom, and is so obviously necessary for the security of 
private rights, that the refusal to entertain the cause at all would 
scarcely be a greater error than the denial of this privilege.”’ 
The Canon Law differs from the secular law on this matter, for 
Canon 1771 rules that the parties have no right to be present at 
the examination of the witnesses, unless the judge permits them 
to be present. 

1721. The examination of witnesses is held by the judge, or 
by his delegate, or by an auditor whom a notary must assist. In 
the examination the questions are not to be proposed to the wit- 
nesses by anyone else than the judge or by: the person who takes 
his place. Wherefore, if the parties, or the prosecutor, or the 
defensor vinculi are present at the examination, and have new 
questions which they want to be put to a witness, they may not 
themselves ask the questions, but must propose them to the judge 
or the person taking his place, who is to put them to the witness 
(Canon 1773). 

The Canon Law procedure in the examination of witnesses 


° 


CANONS 1773-1776 277 


differs very much from the procedure followed in the secular 
courts. In the latter, the judge does not examine the witness, 
but the attorney of the party who called the witness conducts the 
examination to elicit his testimony upon all the material facts on 
which the party relies for judgment in its favor. After the 
attorney has finished his examination of the witness, he turns the 
witness over to the attorney of the opposing party for cross- 
examination on the points on which the witness has been ques- 
tioned by the first attorney. In some states the witness in the 
eross-examination may be questioned on the whole case, even 
though the first attorney has questioned him only on one particu- 
lar fact or phase of the case. Though the judge does not conduct 
the examination of witnesses, he is not a mere moderator between 
contending parties, but has large discretion in the application 
of the rules of practice; he may prevent a needlessly long 
examination, exclude evidence which is merely cumulative, pre- 
vent the witness from going beyond proper limits in giving his 
testimony, prevent counsel from asking the witness irrelevant 
questions, and also prevent needless interruptions by opposing 
counsel. He may ask the witness questions himself, and may 
even call a witness of his own motion and question him. 

1722. A witness must first be asked not only the general ques- 
tions about his own person—namely, his name and surname, 
birth-place, age, religion, state of life and occupation, domicile— 
but also his connections or relations with the parties in the case. 
Then follow the questions which relate to the case itself, and he 
must be asked from what source and how he obtained knowledge 
of the things which he asserts (Canon 1774). 

1723. The questions must be brief and simple, not compli- 
cated, nor captious, nor cunning, nor suggestive of the answer 
(i.e., putting the answer into his mouth so as to trip him easily), 
nor in any manner offensive, nor irrelevant to the case in ques- 
tion (Canon 1775). 

The questions are not to be made known to the witnesses 
before they go on the stand. If, however, the matters concern- 
ing which they are to testify belong to a period so remote that 
the witness could not answer with certainty unless he had time 
to reflect, the judge can before the examination tell a witness 
to reflect on certain facts, if he believes that it can be done with- 
out prejudicing his testimony (Canon 1776). 


278 A PRACTICAL COMMENTARY 


1724. The witnesses shall give their testimony orally, and 
they shall not be permitted to read a written statement, unless 
there is question of figures and accounts. In the latter case, 
they are allowed to consult the notes which they have brought 
with them to refresh their memory (Canon 1777). The answer 
is to be committed to writing immediately by the actuary, not 
only in substance but in the identical words used by the witness, 
unless in view of the slight importance of the evidence, the judge 
thinks it sufficient to have only the substance reported (Canon 
1778). The actuary shall mention in his report whether the 
oath was taken, dispensed with or refused, whether the parties 
and other persons were present, what questions were ex officio 
added to the interrogatory presented to the judge (cfr. Canon 
1773), and generally every worthwhile happening at the exam- 
ination of the witnesses (Canon 1779). 

Before the witness leaves the stand, the testimony given by 
him and written down by the clerk must be read to him, and he 
must be given leave to add, suppress, correct, or vary his state- 
ments. Finally, the witness, judge and notary must sign the 
document (Canon 1780). 

1725. Witnesses who have been already examined, may he 
again called to the witness-stand, either at the request of a party 
or ex officio, before the acts or testimonies are made public, if the 
judge thinks it necessary or useful, and provided all danger of 
collusion or corruption of the witness is absent (Canon 1781). 


ARTICLE V—OF THE PUBLICATION AND THE REJECTION OF THE TESTIMONY 
OF WITNESSES 

1726. If the parties or their proxies were not present at the 
examination of witnesses, the testimony may be published by 
order of the judge immediately after the evidence of all the wit- 
nesses has been taken. The judge may defer the publication of 
the testimony until the submission of the other kinds of proofs 
has been completed, if he thinks it best in the case (Canon 1782). 

1727. After the publication of the testimony: 

(1) the right to reject a witness ceases, unless one proves or 
asserts under oath that one had no knowledge of the defect of a 
witness previous to the publication (cfr. Canon 1764) ; 

(2) the right still remains to object to the manner of the 
examination because the rules of law have not been observed in 


CANONS 1777-1788 279 


conducting the examination, or to the depositions themselves 
because one charges that the testimony is false, or at variance, 
or in contradiction to other testimony, or obscure, or that the wit- 
ness did not have proper knowledge, and the like (Canon 1783). 

The judge shall by his decree overrule the objection, if he 
knows that it rests on a futile basis or was made for the pur- 
pose of retarding the trial (Canon 1784). If the objection is sus- 
tained, the judge shall fix a short period of time within which 
the objecting party shall prove the reason for the rejection of a 
witness or of depositions, and then he shall proceed as in other 
incidental cases (Canon 1785). The rules of procedure on inci- 
dental cases are given below in Title XI (cfr. nn. 1764-1767) 

1728. After the publication of the depositions, the witnesses 
shall not be questioned again on the same points, nor shall new 
witnesses be admitted except with caution and for a grave reason 
in cases which never become a res judicata (i.e., a case in which 
the sentence is so final that it cannot be reopened) ; to admit new 
witnesses in other cases, a most serious (gravissima) reason is 
required. In every case of admitting new witnesses, all dan- 
ger of fraud and corruption must be removed, the opponent must 
be heard, and the opinion of the prosecutor or defensor vincula 
asked, if either takes part in the trial. The judge shall rule on all 
these matters by his decree (Canon 1786). 


ARTICLE VI—OF THE COMPENSATION OF WITNESSES 


1729. A witness has the right to ask for compensation for the 
expenses incurred in travelling and during his stay at the place 
where court was held, and also for the losses sustained by the 
interruption of his business or work. After hearing the party 
and the witness, and if necessary also experts, the judge has the 
right to fix the amount to be paid for losses sustained and for 
reimbursement of expenses (Canon 1787). If the judge has 
demanded that the party calling witnesses deposit in advance a 
certain sum of money with the court to cover the compensation 
due to the witnesses (cfr. Canon 1909), and has peremptorily 
fixed the time within which such sum is to be deposited, the party 
who neglects to do so is considered to have waived the right to 
have the witnesses called and examined (Canon 1788). 


280 A PRACTICAL COMMENTARY 


ARTICLE VII—OF THE APPRAISAL OF THE DEPOSITIONS OF WITNESSES 


1730. In weighing the depositions of witnesses the judge shall 
keep in view the following points: 

(1) the status of the witness, his reputation for probity, and 
the position he holds (ecclesiastical or civil) ; 

(2) whether his testimony is based on personal knowledge, 
especially sight or hearing, or whether it is based on rumor, pub- 
lic report, or things which he heard from others; 

(3) whether the testimony is consistent and coherent or con- 
tradictory, uncertain, and vacillating ; 

(4) whether other witnesses corroborate the testimony, or 
it is unsupported (Canon 1789). 

1731. If the testimonies are at variance, the judge shall con- 
sider whether the depositions are mutually contradictory, or 
whether they merely cover different facts or circumstances of a 
case, and therefore supplement each other (Canon 1790). 

1732. The deposition of one witness does not constitute full 
proof, unless he is a so-called qualified witness who testifies as 
to things done in his official capacity (e.g., a pastor in reference 
to his pastoral duties or functions). If two or three absolutely 
trustworthy witnesses testify in court under oath as to some 
affair or fact, and do so of their own personal knowledge and 
their testimony is strictly concordant, it is considered sufficient 
proof. If, however, in view of the very serious nature of an 
affair or because of indications which create doubt as to the 
truth of things asserted, the judge believes it necessary, he may 
demand more complete proofs (Canon 1791). 


CHAPTER IIT 


OF EXPERTS 


1733. The service of experts must be employed whenever the 
law or the judge demands their interrogation and opinion for 
the purpose of establishing some fact or determining the true 
nature of some thing (Canon 1792). 

1734. The choice or designation of the experts pertains to the 
judge. He may make the designation in merely private cases 
at the request of both parties, or of either provided the other 
party consents; in cases, however, in which the public welfare 


CANONS 1789-1799 281 


is concerned, the appointment of the experts must be done in 
consultation with the prosecutor or the defensor vinculi. It is 
left to the discretion of the judge to appoint one or more experts, 
according as the nature of the case and the difficulty of the affair 
may demand, unless the law itself fixes the number of experts 
(Canon 1793). 

1735. The experts must use their skill in harmony with the 
laws of truth and justice, neither affirming a falsehood nor con- 
cealing the truth; if they fail in this duty, they shall be punished 
by the judge in accordance with Canon 1743 (Canon 1794). 

1736. Other things being equal, those persons should be 
chosen as experts who have been declared capable by the author- 
ity of a competent board. Persons who in virtue of Canon 1757 
are disbarred from giving testimony in court, cannot be ap- 
pointed as experts (Canon 1795). Experts may be challenged 
for the same reasons as witnesses may be rejected. The judge 
shall decide by decree whether or not the objection is to be sus- 
tained, and, if he does sustain the objection, he shall appoint 
an expert in place of the one rejected (Canon 1796). 

1737. Experts are considered to have accepted the appoint- 
ment by the taking of the oath that they will faithfully fulfill 
their office. The parties may be present not only when the 
experts take the oath, but also when they exercise their office, 
unless the nature of the case, or decency, or the law, or the orders 
of the judge forbid their presence (Canon 1797). If, after hav- 
ing taken the oath, the experts do not execute their task within 
the time specified by the court, or if without a just cause they 
defer its execution, they are liable for damages (Canon 1798). 
After considering the suggestions which the parties may make 
in the matter, the judge shall specify in his decree every single 
item concerning which the aid of the experts is sought. The 
time within which the experts are to examine into the matter and 
give their opinion may be fixed by the judge if he thinks it 
necessary or useful, and he may also prolong this interval, after 
he has heard the parties on the proposed postponement (Canon 
1799). 

1738. If doubt arises as to the author of some writing, the 
judge shall at the proposal of the parties submit to the experts 
other writings for comparison with the one in question. If the 
parties disagree as to the papers which are to be used for the 


282 A PRACTICAL COMMENTARY 


purpose of comparison, the judge shall choose those papers 
which the party in question has acknowledged as his handwrit- 
ing, or writings which the supposed author of the controverted 
paper wrote in his public capacity, and which are kept in archives 
or other public records, or his signatures which are attested by 
a notary or other public person before whom he affixed his sig- 
nature. If the papers which have been submitted by the parties 
and the judge for the purpose of comparison, do not in the 
opinion of the experts suffice for a satisfactory investigation, 
and if the person who is supposed to be the author of the con- 
troverted writing is living, the judge shall at the request of a 
party or even ex officio summon him in order that he may with 
his own hand write in the presence of the judge or his delegate 
whatever the experts, the judge or his delegate may dictate. 
Refusal to write without proving a legitimate reason for such 
refusal is considered a confession of the authenticity of the con- 
troverted writing to the prejudice of the one who refused to 
write (Canon 1800). 

1739. The experts may give their opinion either in writing 
or orally in presence of the judge; if it is given orally, it must 
be immediately taken down by a notary and signed by the ex- 
perts. An expert, especially if he gives his opinion in writing, 
may be summoned by the judge to give whatever further ex- 
planation seems necessary. The experts must clearly indicate 
the ways and means adopted by them in carrying out the orders 
of the court and the chief reasons on which their opinion is 
based (Canon 1801). 

Hach of the experts shall make a distinct report, unless, in 
cases where the law does not stipulate otherwise (cfr. Canon 
1980), the judge orders that a single report be subscribed by all. 
If one report is ordered by the judge, all differences of opinion 
among the experts, if. there be any, must be carefully noted 
(Canon 1802). If the experts differ in their opinions, the judge 
may either ask the opinion of a more distinguished expert on the 
reports of the first experts, or he may have other experts make 
a new examination. The judge has authority to follow the same 
course, whenever the experts, after being appointed, become sus- 
pected or are found to be unequal to and unsuitable for filling 
their office (Canon 1803). 

1740. The judge shall not take into account solely the opin- 


CANONS 1800-1807 283 


ions of the experts, even though they are concordant, but shall 
also weigh the other circumstances of the case. When giving the 
reasons for his decision, he must state the arguments that moved 
him to accept or reject the conclusions of the experts (Canon 
1804). 

The expert opinion of witnesses is an exception to the general 
rule that a witness is not allowed to testify as to his opinion, con- 
clusion, or inference from facts of which he has knowledge, but 
is permitted only to state facts of which he has personal knowl- 
edge. The expert opinion evidence is resorted to in the ecclesi- 
astical, as well as in the secular courts, whenever the nature of 
‘the case, in the decision of the judge, demands expert opinion. 
The witness must be specially qualified to give such opinion (1.e., 
he must be possessed of the scientific or technical knowledge 
necessary to give an opinion in the case). The expert witnesses 
in ecclesiastical trials are chosen by the judge. In the secular 
courts of England and the United States the parties to the suit 
select their own experts. In some countries, including France 
and Germany, they are notj permitted to do so. In France, ex- 
pert witnesses are selected by the court; and in Germany they 
must be specially authorized by the government to give expert 
evidence (cfr. Hughes, ‘‘Law of Evidence,’’ 161). 

1741. The expenses and fees of the experts shall be fixed by 
the judge with fairness and equity in conformity with the 
acknowledged custom of the respective places; if a party feels 
aggrieved over the amount allowed by the judge, recourse may be 
had in accordance with Canon 1913 (Canon 1805). 


CHAPTER IV 


OF JUDICIAL ACCESS AND INSPECTION 


1742. If the judge believes it necessary to go to the place of 
controversy and to inspect the thing itself (e.g., to Inquire into a 
dispute over the boundary lines of two parishes), he shall, after 
hearing the parties, issue a decree to that effect, and therein 
state briefly what is to be done during this visitation (Canon 
1806). The judge may perform the inspection either in person 
or through an auditor or a delegated judge (Canon 1807). When 
the judge inspects an object or a place, he may employ experts, 
if he deems their aid necessary or useful. If experts are em- 


284 A PRACTICAL COMMENTARY 


ployed, the precepts of Canons 1793-1805 shall be observed in so 
far as possible (Canon 1808). If the judge believes that there 
is danger of quarrels and disturbances, he can forbid the parties 
or their attorneys to be present at the judicial inspection (Canon 
~ 1809). 

1743. The judge may examine witnesses either summoned ex 
officio or legitimately presented by the parties before the inspec- 
tion at the time and in the place where the judicial inspection is 
held, if he thinks it advantageous for more complete proof or 
for the removal of the doubts on account of which the inspection 
had to be ordered (Canon 1810). A notary shall take diligent 
care that the acts show the day and hour of the inspection, what 
persons were present, and what was said or done or decreed by 
the judge in the course of the inspection. The report of the 
inspection shall be subscribed by the judge and the notary 
(Canon 1811). . 


CHAPTER V 


OF DOCUMENTARY PROOF 


ARTICLE I—OF THE NATURE AND WEIGHT OF DOCUMENTS 


1744. In every kind of trial proof by documents, both public 
and private, is admitted (Canon 1812). 

The principal publie ecclesiastical documents are: 

(1) acts of the Supreme Pontiff, of the Roman Curia and 
of Ordinaries, if the acts were issued in the exercise of their 
office and in authentic form; also authentic attestations concern- 
ing these acts made by the aforesaid persons or their notaries; 

(2) instruments made by ecclesiastical notaries ; 

(3) judicial ecclesiastical records; 

(4) records of baptism, confirmation, ordination, religious 
profession, marriage, and death, which are preserved in the 
Curia, or the parish, or the religious organization; also written 
attestations taken from the said records made by pastors, or 
Ordinaries, or ecclesiastical notaries, and authentic copies of 
them (Canon 1813, § 1). 

Public civil documents are those which are considered as such 
by the laws of the various countries (Canon 1813, § 2). 

Private documents are letters, contracts, last wills, and any 
other writings made by private persons (Canon 1813, § 3). 


CANONS 1808-1813 285 


The secular law on written evidence divides writings into the 
following three general classes: (1) private writings; (2) public 
writings; and (3) quasi-public writings. Private writings are 
subdivided into: (1) attested writings, and (2) unattested 
writings. The modes of proof of authorship of these two sub- 
divisions are governed by different rules. Public writings, ac- 
cording to their character, are divided into: (1) judicial, and 
(2) non-judicial. According to their mode of proof, they are 
subdivided into: (1) documents of record, (2) documents not 
of record. Judicial writings are subdivided into three classes: 
(1) judgments, decrees and verdicts; (2) depositions, examina- 
tions and inquisitions; (3) warrants, writs, pleadings, ete. The 
public records kept of the acts done in discharge of a public duty, 
though the law does not require it to be kept, is admissible in 
evidence. It is not essential that it be kept by the public officer 
himself, but it suffices that it is kept under his direction. As a 
general rule, public records are not conclusive as to their con- 
tents, but they are sufficient to establish their prima facie facts 
(Hughes, ‘‘Law of Evideiiee,’’ 199). 

The parochial and diocesan records are public documents in 
the ecclesiastical courts, but the secular courts of the United 
States do not accord them the recognition of public documents. 
The reason is that the bishops, pastors and other officials of the 
Church are not recognized as official by the laws of the states of 
the Union, because there is no official relation between the 
Church and the governments of the various states. The 
Church officials are regarded either as private individuals—or 
as heads of private corporations, if a diocese, parish, ete., has 
availed itself of the right to form a private corporation under 
the laws of the respective state. Under the rule of evidence that 
declarations of third persons made in the regular course of duty 
or business are admissible, in evidence, the church books or 
records serve to prove the facts therein contained under the fol- 
lowing conditions: (1) the declarations or entries must have 
been made in the discharge of some duty or in the usual course 
of business; (2) they must have been made at the time when the 
transactions to which they relate occurred, or within a reasonable 
time thereafter; (3) the declarant must, as a general rule, have 
had personal knowledge of their contents; (4) the declarant must 
be dead, or for some other reason unavailable as a witness. 


286 A PRACTICAL COMMENTARY 


1745. Public documents, both ecclesiastical and civil, are pre- 
sumed genuine until the contrary is proved by evident arguments 
(Canon 1814). The inspection or the attack of some document 
or writing may be proposed in court either as an incidental 
question or after the manner of a principal action (Canon 1815). 
For example, the judicial inspection of the original document 
may be asked, if the copy presented shows important variants 
from other papers purporting to be copies of the same original. 
A document may be attacked (e.g.) because one has reason to 
maintain that it is not made or signed by the person whose name 
appears as its maker or signer, or because it is defective in form, 
or there are provable errors in important facts stated in the 
document, ete. 

1746. Public documents prove the facts which are directly 
and principally asserted: no further proof is required, and the 
judge is bound to pronounce in favor of the party whose conten- 
tion is proved by a public document, which was sustained as such 
by the court (e.g., against attacks by the defensor vincult, or the 
adverse party). 

1747. Private documents which have been acknowledged by a 
party as his own writing, or recognized as genuine by the judge, 
prove against the writer or author and those who derive their 
claim from him as much as an extra-judicial confession ; in them- 
selves they have no force of proof against outsiders (Canon 
1817). According to Canon 1753, an extra-judicial confession or 
admission of a fact, either written or oral, has not the force of 
full proof in favor of the opponent or to relieve him ipso facto 
from further proof, but the law leaves it to the judge to deter- 
mine its weight. The private document amounts to an extra- 
judicial confession also against those persons who derive their 
claim to some right or property through the author or writer 
of the private document (e.g., in a suit regarding the right to a 
piece of land, the heir who stands in court is affected by the 
admissions made in a letter of the testator, if it has reference to 
the matter in litigation). 

1748. In the case of defective documents—namely, those 
which show erasures, corrections, interpolations, or other defects 
—it is left to the discretion of the judge to determine whether 
and how far they prove anything (Canon 1818). 

The alteration of a written instrument may consist of an 


CANONS 1814-1822 287 


interlineation, an erasure, a cancellation or an addition. The 
alteration may be either material or immaterial. It is called 
material, when it changes the legal effect of the instrument; 
otherwise, it is called immaterial. A written instrument is invali- 
dated by alteration if the following conditions concur: (1) if the 
alteration is material; (2) if it was made intentionally; (3) if 
it was made by the grantee or promisee; (4) if it was made 
without the consent of the grantor or promisor, and was made 
after the execution of the instrument. Alterations in a will 
made after its execution are void, unless the will is formally 
re-executed, and, where re-execution is not done, the will should: 
be probated as originally made. 


ARTICLE II—OF THE EXHIBITION OF DOCUMENTS AND OF THE ACTION TO 
FORCE THEIR EXHIBITION 

1749. Documents have no force of proof in court, unless they 
are exhibited either in the original or in authenticated copy and 
are deposited with the chancery of the court. The only excep- 
tions are documents which are public property (e.g., those pub- 
lished in the Acta Apostolice Sedts, or in the official organ of 
a diocese, etc.), or laws which have been properly promulgated 
(Canon 1819). 

1750. Documents must be exhibited in authentic form and 
deposited in court in order that they can be examined by the 
judge and the opponent (Canon 1820). If a doubt arises 
whether the document is a faithful copy, the judge may, at the 
request of a party or even ex officio, order that the document 
itself from which the copy was made be exhibited. If this can- 
not be done at all or only with very great difficulty, the judge 
may delegate an auditor or request the local Ordinary to have 
the document examined and compared, prescribing the points 
on which and the manner wherein the comparison is to be made; 
both parties may be present at the collating (Canon 1821). 

1751. If the documents are common to both parties and treat 
of an affair common to both (e.g., last wills and instruments 
which relate to successions, partitions of goods, contracts, and 
similar affairs concerning which there is a controversy between 
the parties), any one of the litigants may ask that they be 
exhibited in court by the party which is said to have them in 
his possession (Canon 1822). 


288 A PRACTICAL COMMENTARY 


1752. Nobody, however, is obliged to exhibit documents, 
though common to both parties, which cannot be communicated 
without danger of damage, in accordance with the rule of Canon 
1755, or without danger of violating a secret which is to be kept. 
If, however, at least a part of the document which is of interest 
to the other party can be extracted and exhibited in authentic 
copy without the aforesaid inconveniences, the judge may rule 
that they be thus exhibited (Canon 1823). 

1753. If a party refuses to produce a document which the 
law demands to be prcduced and which he is said to possess, 
the judge shall at the request of the opposing party—after 
hearing, if necessary, the prosecutor or the defensor vinculi— 
decree by interlocutory sentence whether and how the exhibition 
of the document is to be made. If the party refuses to obey 
the judge, the latter shall decide what importance is to be at- 
tached to this refusal. If the party denies that he has posses- 
sion of the document, the judge can subject the party to an 
examination, and oblige him to take an oath on the matter 
(Canon 1824). 


CHAPTER VI 


OF PRESUMPTIONS 


1754. Presumption is a probable conjecture about an un- 
certain affair. It is twofold, as it may be either a presumption 
of law (which is stated in the law itself) or a presumption ab 
homane (which the judge forms for himself). The presumption 
of law is either a simple presumption, or a presumption of law 
called juris et de jure—that is, an absolute presumption which 
does not admit proof to the contrary (Canon 1825). 

1755. Against a simple presumption of law, direct as well as 
indirect proof to the contrary is admitted (e.g., a person whe 
violates the law is generally presumed to have known the law, 
but proof that he actually was ignorant of the law is admitted) ; 
against an absolute presumption of law (juris et de jure) only 
indirect proof is admitted—that is, contrary to the fact which 
is the foundation of the presumption (Canon 1826). For ex- 
ample, Canon 1904 establishes an absolute presumption in favor 
of a judicial sentence which has become a res judicata; where- 
fore, the justice or truth of the sentence can never be directly 


CANONS 1823-1828 289 


attacked, but one may prove that there had been no foundation 
for the lawsuit which was based on contract, because no contract 
had existed between the parties. The absolute presumptions are 
extremely rare in the canonical legislation (cfr. Canons 1904, 
1972). 

1756. He who has a presumption of law in his favor is freed 
from the burden of proof, which is thus shifted to his opponent; 
if the latter cannot prove that the presumption failed in the 
case, the judge must render sentence in favor of the one on 
whose side the presumption stands (Canon 1827). Presump- 
tions which are not stated in law shall not be conjectured by 
the judge except from a certain and specific fact which is directly 
connected with the fact in controversy (Canon 1828). The 
presumption must thus be a kind of reasonable conclusion or 
inference from another specific fact established by evidence in 
the case. Since all inferential evidence is dangerous and easily 
misleads, the Code warns against conjectures. 

Presumptions are recognized, not only by the ecclesiastical, 
but also by the civil law.|) The latter divides presumptions into 
those of law and those of fact. The presumptions of law are 
divided into conclusive and disputable presumptions: the con- 
clusive presumptions are the same as the Canon Law presump- 
tions juris et de jure; disputable presumptions are the same as 
the presumptions known in Canon Law as simple presumptions 
of law (juris simpliciter). If the law of the state admits a con- 
clusive presumption, it has (like the presumption jwris et de 
jure) the effect that no evidence to contradict it is admitted in 
court. The disputable presumption may be rebutted by evidence 
to the contrary, but the burden of proof is shifted to the party 
against whom the presumption operates. There are only a few 
conclusive presumptions in the laws of the states of the United 
States. The following are illustrations of the most commonly 
accepted conclusive presumptions: (1) an infant under seven 
years of age is conclusively presumed not to be capable of com- 
mitting any crime; the Canon Law exempts them from ecclesi- 
astical laws even though they might have the use of reason (cfr. 
Canon 12); (2) the continuous adverse user of land for twenty 
years conclusively establishes title: Canon Law ealls this man- 
ner of acquiring ownership ‘‘prescription,’’ and it generally 
adopts the laws of the respective state in this matter with the 


290 A PRACTICAL COMMENTARY 


proviso that no prescription is admitted unless it is baséd on 
bona fide possession from beginning to end of the prescribed 
period of prescription (efr. Canon 1512), and that for certain 
eoods the Canon Law rules exclusively shall be applied (cfr. 
Canon 1508); (3) a boy under fourteen years of age is conclu- 
sively presumed to be incapable of committing rape (there is no 
such presumption in Canon Law) ; (4) a girl of tender years 1s 
conclusively presumed incapable of consenting to sexual inter- 
course, the age limit varying in the several states from twelve to 
eighteen years (there is no such presumption in Canon Law) ; 
(5) all persons are presumed to know the law (Canon Law does 
not admit ignorance as an excuse from the laws that disqualify 
a person or render acts invalid; in other laws ignorance may be 
pleaded as specified in Canon 2229). 


CHAPTER VII 


OF THE OATH OF THE PARTIES 


1757. If there is only incomplete (semzplena) proof, and 
there are no further means available to strengthen the proof, 
the judge may order or admit (if requested) the taking of an 
oath to supplement the proofs; this oath is called a supplementary 
oath (Canon 1829). 

1758, This oath (jusjurandum suppletorium) is mostly em- 
ployed when the circumstances which relate to the civil or re- 
ligious state of a person cannot otherwise be ascertained. The 
judge should abstain from demanding or admitting the supple- 
mentary oath in criminal eases, and also in civil cases wherein 
a right or an affair of great import is involved, or a fact of too 
ereat importance, or if the right, the affair, or the fact is not 
proper to the person who is to take the supplementary oath 
(e.g., if the party is not personally in court but is represented 
by a proxy, in which case he needs a special mandate from the 
party to take the oath, efr. Canon 1662). The oath may be 
demanded either ex officio (at the will of the judge), or at the 
request of the opposing party, or of the prosecutor or defensor 
vinculi, if either takes part in the trial. As a rule, it is demanded 
of the party who has produced more complete proof. It per- 
tains to the judge to decide by decree whether and when such 


CANONS 1829-1834 291 


circumstances coneur as to make the demand for the supple- 
mentary oath necessary (Canon 1830). 

1759. The party who is asked to take the supplementary oath 
in affairs which do not pertain to his civil or religious state, 
may for a just reason refuse to take the oath or request tnat 
the opponent take it. The judge must decide what significance 
that refusal has, whether it is legitimate, or whether it is rather 
to be held equivalent to a confession. The supplementary oath 
taken by one of the parties may be attacked by the other (Canon 
1831). 

1760. If the right to compensation for damages has been 
established, but the amount of the indemnity cannot be esti- 
mated with certainty, the judge can demand of the party who 
has suffered damage the oath which is called an estimatory oath 
(Canon 1832). In demanding the estimatory oath the following 
points must be observed: (1) the judge shall require the party 
who suffered damage to state under oath what goods or property 
were taken from him or lost to him by the malice of the other 
party, and to assess the price or value according to reasonable 
estimate; (2) if the valuation seems excessive to the judge, he 
may reduce it to an equitable amount, keeping in mind all the 
ways and means commonly employed in appraisals; if necessary, 
he may summon experts to assist him so as to make more certain 
of a true and just appraisal (Canon 1833). 

1761. The parties may make an agreement to settle the dis- 
pute by an oath taken by either party, not only before the contro- 
versy in court has begun, but also during the trial; and at any 
time or stage of the case one party may with the approval of 
the judge demand of the other party an oath under condition 
that the controversy, either the principal action or an incidental 
question, may be settled by the oath. This is called the decisive 
oath (Canon 1834). 

1762. The decisive oath may be demanded only under the 
following conditions: 

(1) the oath must be concerning an affair in which cession 
and private settlement is admitted, and which is not of too great 
an importance or value to the litigating persons; 

(2) it may be demanded by persons only who can cede their 
rights or make a private settlement concerning them; 

(3) it may be demanded of persons only who can cede their 


2928) A PRACTICAL COMMENTARY 


rights or make a private settlement, and who do not have full 
proof in their favor (if they have given full proof of their claim, 
they cannot be asked to take this oath, for they have a right to 
sentence in their favor) ; 

(4) the oath may be demanded only as to mere knowledge 
of facts or an action personally known to or done by the party 
of whom the oath is demanded (Canon 1835). 

1763. The party who has demanded the decisive oath of the 
opponent, may recall his demand at any time before the oath is 
taken; the opponent is at liberty to accept the demand and take 
the oath, or to refuse it, or to retort it on the party making 
the demand. If the oath is taken, the question as contained in 
the formula of the oath is settled in the same manner as though 
a cession or a settlement in court had taken place (cfr. Canons 
1925-1928 on settlements). If the oath is refused but is not 
retorted on the opponent, it pertains to the judge to estimate 
the import of the refusal, whether it is based on good reasons 
or whether it is to be held equivalent to a confession. If it is 
retorted on the opponent, he must take the oath, or he loses 
his case. If the demand for the decisive oath is retorted 
on the opponent, it can be done only under the same conditions 
which are, in Canon 1835, required for the demand of the oath, 
and the oath is to be administered by the judge (Canon 1836). 


TITLE XI 
OF INCIDENTAL CASES 


1764. An incidental case is a question which is raised by one 
of the parties—or by the prosecutor or denfensor vinculi, if either 
takes part in the trial—after the trial has begun (i.e., after the 
issuing of the summons), provided it is a question which, though 
not proposed explicitly in the bill of complaint, is nevertheless 
connected with the case in such a manner that it must as a 
rule be decided before the main question of the case can be 
adjudged (Canon 1837). 

An incidental case may be proposed either orally or by a 
bill indicating the connection which it has with the principal 
case; the precepts of Canons 1706-1725 on the introduction of 
a case are, in so far as possible, to be observed (Canon 1838). 





CANONS 1835-1842 293 


1765. After the judge has received the written or oral pres- 
entation of an incidental case, he shall hear the parties—and, 
if necessary, the prosecutor or the defensor vinculi—and. decide 
whether the proposed incidental question is futile and raised 
only for the purpose of delaying the trial of the principal case, 
or whether the incidental question is of such a nature and has 
such connection with the principal case that it must be decided 
before the principal case can be settled. If he judges that 
it should be sustained, he shall admit the introduction of 
the incidental case ; otherwise he shall by decree reject it (Canen 
1839). 

1766. It is left to the discretion of the judge to decide 
whether, in view of the nature and gravity of the affair, an 
incidental ease shall be decided in a formal trial or by a mere 
ruling of the judge. If the incidental question is to be settled 
in formal trial, the rules which are laid down for ordinary 
trials shall be observed in so far as possible. The judge, how- 
ever, shall take care that the terms of delay (e.g., the days 
within which the parties miust produce proof and defence) shall 
be as brief as possible. If the judge decides that the incidental 
question is to be settled without formal trial, and he either rejects 
the incidental question or decides it, he shall in the document 
vontaining these acts briefly indicate the reasons from law and 
fact on which his ruling was based (Canon 1840). 

1767. Before the principal case is finished, the judge may 
for a just reason correct or revoke an interlocutory sentence, 
either on his own initiative after giving the parties a hearing, 
or at the request of one of the parties after giving a hearing 
‘to his opponent. In all cases in which the prosecutor or the 
defensor vinculi takes part, their opinion must be asked before 
the judge changes an interlocutory sentence (Canon 1841). 


CHAPTER I 


OF CONTEMPT OF COURT 


1768. A defendant who has been summoned and without a 
just excuse fails to appear in court either in person or by proxy, 
may be declared guilty of contempt of court (Canon 1842). 
The judge cannot proceed to declare him guilty of contempt 
unless it has been first ascertained : | 


294 A PRACTICAL COMMENTARY 


(1) that the summons was legitimately issued and came to 
the notice of the defendant within due time, or at least should 
have come to him (e.g., if the defendant deliberately concealed 
his whereabouts) ; 

(2) that the defendant has neglected to offer an explanation 
for not appearing, or has given no valid excuse. 

These things may be proved either by a new summons of 
the defendant, ordering him to offer an excuse, if he can, for 
his failure to appear, or contempt may be proved by other means 
(Canon 1843). 

The law of the various states of the American Union has 
in substance the same rules as Canon Law concerning failure 
of a defendant to appear in court (in person or by proxy) to 
answer the complaint of the plaintiff on the day appointed by 
the court and made known to him by the service of the sum- 
mons, or, after having answered, for default in pleading his 
ease. The New York Code specifies a number of cases in which 
the clerk of the court can enter judgment in favor of the plain- 
tiff after the plaintiff has filed proof of the service of the sum- 
mons on the defendant and a copy of the complaint, and proof 
by affidavit that the defendant has not appeared. The same 
procedure is followed when the defendant appears to answer the 
first summons, but makes default in pleading. In cases in which 
the clerk is not competent to enter judgment by default, the 
plaintiff may apply to the court or to a judge thereof for judg- 
ment (Civil Practice Act, §§ 485-490). 

The Code of Canon Law also considers the criminal aspect 
of contempt of court (efr. n. 1770). Disobedience to a legiti- 
mate order of a competent court is an offense, and may be 
punished by the court in summary proceeding, but in the ecclesi- 
astical courts it is necessary to repeat the summons and prove 
disobedience to the second summons before the offender ean be 
punished. In the secular courts it is not necessary to repeat 
the summons. 

1769. The judge may declare a party guilty of contempt at 
the request of the opposing party—or of the prosecutor or the 
defensor vinculi, if either takes part in the trial—and, once the 
declaration has been issued, the judge may proceed with the 
case, observing the prescribed rules of procedure up to the final 
sentence and its execution. If the case proceeds to the final 


CANONS 1843-1846 295 


sentence without the joining of issues (viz., in case the defendant 
refuses to answer the summons for the joining of issues), the 
sentence may cover only the claims made in the bill of complaint ; 
if the joining of issues had taken place, the sentence covers the 
object of the issues—i.e., all the counts under which the plain- 
tiff prayed for relief against the defendant (Canon 1844). The 
plaintiff does not win his case by the very fact that the de- 
fendant refuses to appear, either at the beginning of the trial 
or at any later stage of the same: he must prove his claim and 
the judge must conscientiously examine the proofs. If no join- 
ing of issues took place through the contempt of court of the 
defendant, the original bill of complaint 1s the basis for the 
suit; the plaintiff has to prove what he claimed in his bill, and 
the judge passes sentence on the claim in the bill; if the joing 
of issues took place, those issues are the basis of the trial, and, 
after the plaintiff has proved the counts in the issues, the judge 
must pronounce sentence on the issues. 

1770. The judge may threaten a party suilty of contempt 
with ecclesiastical penalties for the purpose of forcing obedience 
to the court. If the judge wishes to do so, he must issue the 
summons a second time together with the threat of penalties in 
case of disobedience; he may not declare the party guilty of 
contempt or, if he has already declared him guilty of disobedi- 
ence to the first summons (cfr. Canons 1843-1844), he cannot 
inflict the penalties, until it has been proved that even the 
second summons has failed to break the obstinacy of the party 
summoned (Canon 1845). 

1771. If the defendant recedes from his obstinacy and ap- 
pears in court before the final sentence, his conclusions and 
proofs, if he offers any, must be admitted. The judge must, 
however, beware lest the trial be through malice unnecessarily 
protracted (Canon 1846). The mere fact that the defendant 
was guilty of contempt does not necessarily prove that his com- 
ing to court in the course of the trial is done to delay the trial 
maliciously ; otherwise he would have no chance to redeem his 
contempt of court. He has, however, excited the just suspicion 
of the court against himself by the contempt, and must, there- 
fore, make his defence with all promptitude. 

1772. After sentence has been issued, the person guilty of 
contempt of court may petition the judge who issued the sen- 


296 A PRACTICAL COMMENTARY | 


tence to reinstate him in the right of appeal (which right he 
‘has lost by the contempt), but this petition must be made within 
three months from the day on which he had notice of the sen- 
tence; in cases, however, which never become irrevocably ad- 
judged, the petition for reinstatement may be made even after 
the lapse of three months (Canon 1847). 

1773. The above rules on contempt of court apply also to 
cases in which the defendant has obeyed the first summons, but 


becomes guilty of contempt in the course of the trial (Canon 
1848). | 


CoNTEMPT oF CouRT By PLAINTIFF 


1774. If on the day and at the hour when the defendant, 
in obedience to the command in the summons, makes his first 
appearance before the judge, the plaintiff is absent and does 
not give any excuse at all or an insufficient one for his absence, 
the judge shall again summon him at the request of the de- 
fendant. If the plaintiff does not obey the new summons, or 
after answering the summons fails to begin the trial, or after 
having begun fails to prosecute it, the judge at the request of 
the defendant, or of the prosecutor or the defensor vincult, shall 
declare him guilty of contempt, following the same rules which 
were laid down in Canons 1843-1845 for the declaration of con- 
tempt of the defendant (Canon 1849). 

The former Canon Law was more favorable to the defendant, 
when the plaintiff did not appear through his own neglect. If 
the defendant had his defence prepared, he could demand that 
the court accept and examine his proofs against the claim of the 
plaintiff, and obtain a final sentence in his favor which estopped 
the plaintiff. 

1775. The declaration issued by the judge that the plaintiff 
is guilty of contempt has the effect of depriving him of the right 
to prosecute his case. The prosecutor or the defensor vinculi 
has the right to make the case his own and prosecute it when- 
ever the public welfare seems to demand such action. By the 
declaration of the contempt of the plaintiff, the defendant has 
the right to petition the court either that he may be discharged 
in the case, or that all acts done up to that time shall be declared 
null and void, or that he may be definitively freed from the 
claim or charge of the plaintiff, or that the trial may, even in 





CANONS 1847-1853 297 


absence of the plaintiff, be conducted to the end (Canon 1850). 

1776. The party who has been declared guilty of contempt 
of court and has not proved a legitimate excuse for his dis- 
obedience, whether it be the plaintiff or the defendant, shall be 
condemned to pay the cost of the trial in so far as the expendi- 
tures were caused by his contempt and also to indemnify the 
other party if expenses and losses were caused to him by the 
party in contempt. If both plaintiff and defendant are guilty 
of contempt, they are obliged to pay the cost of the trial in 
solidum, i.e., jointly and severally (Canon 1851). 


CHAPTER IL 


OF THE INTERVENTION OF A THIRD PARTY IN A CASE 


1777. A party who is interested in (Le., affected in his rights 
by) a case in court, may be admitted to intervene in every 
instance of the case. In order that he may be admitted, he 
must before the case is closed (cfr, Canon 1860) present a bill 
to the judge in which he briefly informs him of his right to 
intervene. The party who intervenes is to be admitted in the 
stage of the trial which the case has reached, and a brief and 
peremptory term is to be assigned to him within which he must 
produce his proofs, if the case has reached the stage at which 
proofs are taken (Canon 1852). If the intervention of a third 
party seems necessary, the judge must either at the request of 
a party to the trial or ex officio order the third party to inter- 
vene (Canon 1853). 

The Code does not specify the reasons or titles under which 
one may enter a lawsuit either as plaintiff or defendant with 
the original parties to the suit. It states in general that anyone 
whose legal rights are affected by the result of the action in 
court may intervene in any instance of the ease (i.e., at the 
first trial or at the trial in appeal), provided he appears before 
the court has ruled that the taking of evidence has been closed. 
In the secular courts it is the general rule that parties who have 
a real interest in the matter litigated in court may demand to 
be made parties to the suit. Specific rules exist as to the various 
kinds of actions (e.g., arising from contracts, or from torts), and 
whether one may or must be joined either as plaintiff or de- 
fendant. It is evident that where there is a privity of interest, 


298 A PRACTICAL COMMENTARY 


which in the law of procedure means mutual or successive rela- 
tionship to the same rights of property, the party in privity can 
sue and be sued. It has also been generally held that one may 
sue without privity where a promise is made, on a valid con- 
sideration, to one for the benefit of another (e.g., if A loaned 
money to B upon his promise to pay it to C, to whom A was 
indebted, C could sue B to recover the money, though there is 
no contractual relation between C and B). In tort action (injury 
or damage to person or property through negligence), there can 
be cases in which not only the injured party, but also third 
persons have the right to sue (e.g., injury done to one’s servant, 
in which ease the servant has a right to sue the tort feasor for 
the violation of his right of personal security, and the master 
for loss of services if such loss results from the injury to the 
Servant). 


CHAPTER III 


OF ATTEMPTS PREJUDICIAL TO THE OBJECT IN CONTROVERSY 
PENDING THE LITIGATION 


1778. Attempts to prejudice the rights of the parties in a 
case pending in court may not be made by one of the parties 
or by the judge; they may not without the consent of the party 
concerned make any changes as to the object or right in con- 
troversy, nor as to the terms or periods of time assigned by 
law or by the judge for the performance of certain judicial acts. 
The placing of the controverted property into the custody of 
a third party appointed by the court, and the seizure of the 
property of one of the parties for security (cfr. Canons 1672— 
1673), may be done by the court under the conditions specified 
in law (Canon 1854). 

1779. Attempts against a party to a lawsuit are wpso jure 
null and void. Wherefore, a party who has been injured by 
the attempt, has the right to bring action for the declaration 
of the nullity of the acts. The action is to be brought before 
the judge of the principal ease; if, however, the injured party 
suspects the judge of complicity in the attempt against him, he 
may raise the exception of suspicion. The rules how to proceed 
in case of suspicion raised against a judge are given in Canons 
1614-1615 (efr. nn. 1595-1596). The judge himself may not 





CANONS 1854-1857 299 


decide the question of suspicion against himself, for nobody can 
be judge in his own case; it must be decided either by the co- 
judges, if several sit in the case, or by others designated in 
Canon 1615 (Canon 1855). 

1780. Pending decision on the question of attempt, the course 
of the principal case is as a rule suspended, but, if it seems more 
expedient to the judge (provided he is not implicated in the 
attempt), the question of attempt may be discussed and decided 
together with the principal case. Questions of attempt must be 
discussed with the greatest possible speed and decided by decree 
of the judge; the parties and the prosecutor or defensor vinculr 
(if either takes part in the case) must be heard before decision 
is rendered (Canon 1856). 

1781. If the attempt has been proved, the judge must decree 
its revocation or purgation (i.e., he must free the injured party 
from the effects of the attempt made against him). If the at- 
tempt was made through violence or fraud, the one who com- 
mitted the attempt is liable for damages caused to the injured 
party (Canon 1857). j 

1782. The Code speaks of those attempts only which have 
been made against the rights of the party in reference to the 
suit by the opposing party or by the judge. It does not treat 
of attempts made by others, for, unless they interfered with the 
rights of the party at the instigation of a party or of the judge 
(in which case it would be the same as though the latter were 
themselves guilty of the attempt), the injury which is done to 
a party by a stranger to the suit may not be considered in the 
suit. The law against attempts during the pendency of a case 
comprehends also the transfer of the right of action to others 
and the transfer of the property or right in controversy.”° There 
is in some cases a legitimate change of parties to a case against 
which the opponent has no right to complain (e.g., if one of 
the parties dies in the course of a trial concerning some prop- 
erty or right, the heir succeeds him in the right to prosecute 
the case; the same is to be said about bishops, pastors, and 
other administrators of the property of legal persons, for, when 
they go out of office, their successors take their place also as 
parties to pending lawsuits of the diocese, parish, hospital, etc.). 


20 Lega, ‘‘De Judiciis Ecclesiasticis,’’ I, n. 253, 


300 A PRACTICAL COMMENTARY | 


TITLE XII 


OF THE PUBLICATION OF THE PROCESS, THE CLOS- 
ING OF THE CASE, AND PLEADING 


1783. Before the pleading and the sentence in a ease, all 
proofs which have been admitted into the acts of the case and 
which still remained secret must be published (Canon 1858). 
_ If permission was granted to the parties and their attorneys to 
inspect the acts of the process and to obtain copies of the same, 
the publication of the process is thereby made (Canon 1859). 

1784. When everything that pertains to the producing of 
proots has been accomplished, the trial must come to the closing 
of the case (conclusio in causa). This closing takes place when- 
ever the parties questioned by the judge declare that they have 
nothing further to say, or when the time fixed by the judge for 
the submission of proofs has expired (provided the parties were 
able to avail themselves of the time granted), or when the judge 
declares that he is sufficiently informed in the case. The judge 
shall issue a decree on the closing of the case, no matter in what 
manner this took place (Canon 1860). 

1785. After the closing of the case new evidence shall not 
be admitted, except in cases which never become irrevocably 
adjudged (e.g., marriage cases), or unless documents have been 
newly discovered, or in the case of witnesses who could not previ- 
ously be introduced within the proper time for reason of some 
legitimate impediment. If the judge believes that the new proofs 
should be admitted, he must before deciding to admit them give 
a hearing to the opponent and allow him sufficient time to 
acquaint himself with and defend himself against the new 
proofs; otherwise the trial is invalid (Canon 1861). 


FINAL PLEADING 


1786. After the closing of the case, the judge shall give the 
parties a proper interval of time, to be fixed at his discretion, 
to present to the court their defence or arguments either per- 
sonally or through an advocate. The interval may be prolonged 
by the judge at the request of one party, provided the other 





CANONS 1858-1865 301 


party is granted a hearing on the postponement, and may be 
shortened with the consent of both parties (Canon 1862). 

1787. The defence must be made in writing, and, as a rule, 
as many copies must be made as there are judges, so that each 
judge may receive a copy. Copies must be given also to the 
prosecutor and the defensor vinculi, if they intervene in the 
trial. The parties, moreover, shall exchange copies between 
themselves. Whenever in his judgment it becomes necessary, 
and he knows that it can be done without too great hardship 
to the parties, the presiding judge may order that they get the 
defence printed and bound in pamphlet form, together with 
the chief documents in the case and also a summary of the acts 
and documents. In that case the judge shall command that 
nothing be printed without first exhibiting the manuscript to 
him and getting his permission to publish the same; he must, 
moreover, insist on the observation of secrecy, if the case de- 
mands it (Canon 1863). 

The judge—or, in case of a collegiate tribunal, the presiding 
judge—shall prudently prevent too extensive a defence, unless 
the matter is regulated already by special law of the tribunal 
(Canon 1864). 

1788. After the parties have exchanged copies of the defence, 
each party may present an answer to the defence of the other 
within a short period of time to be fixed by the judge under 
the provisions of Canons 1863 and 1864. The parties shall have 
the right to answer once only, unless the judge for a grave 
reason concedes a second reply. If he grants it to one of the 
parties, the other party has the same privilege (Canon 1865). 

1789. So-called oral informations by which the attorneys 
endeavor to instruct the judge concerning the circumstances in 
law and fact relative to the case are forbidden. A moderate 
discussion under the direction of the judge for the purpose of 
clearing up some point is permitted, if the judge, upon the 
petition of either or both parties, thinks it useful to allow it. 
In the petition for the discussion, the parties must submit to 
the judge in writing a brief summary of the points of dispute 
to be discussed. The judge shall inform the parties of the 
points presented for discussion, appoint the day and hour for 
the discussion, and preside at it. One of the notaries of the 
court shall be present at the discussion in order that, if the 


302 A PRACTICAL COMMENTARY 


judge demands or a party asks for it and the judge consents, 
he may immediately make a report of the discussion, confessions 
or conclusions (Canon 1866). 

1790. In civil cases, if the parties neglect within the proper 
time to prepare their defence, or if they leave the matter to 
the knowledge and conscience of the judge, he may immediately 
(i.e., on the day set for the defence or final pleading) pronounce 
sentence, provided he has full knowledge of the affair in litiga- 
tion from the acts and the proofs of the case (Canon 1867). 


TITLE XIII 


OF THE SENTENCE 


1791. A sentence is a legitimate pronouncement by which 
the judge decides a case proposed by the litigants and tried in 
judicial form. The sentence is called interlocutory, if it decides 
an incidental case; definitive or final, if it settles the principal 
case. Other pronouncements of the judge are called decrees 
(Canon 1868). 

1792. Before pronouncing any sentence, the judge must have 
in his mind moral certainty about the matter which is to be 
defined by the sentence. He must obtain this certainty from 
the acts and proofs of the case. The judge must weigh the 
proofs according to his conscience, unless the law itself explicitly 
determines the effect of some proof—e.g.; public documents 
which, if admitted as genuine, prove what is directly and prin- 
cipally asserted in them (cfr. Canon 1816). If the judge cannot 
attain this moral certainty, he shall pronounce that the right 
of the plaintiff has not been established, and he shall discharge 
the defendant, unless there is question of a so-called causa 
favorabilis—that is, a favored case, ¢.g., matrimonial cases on 
the validity of marriage—in which, when the matter remains 
doubtful, the sentence must be in favor of validity (cfr. Canon 
1014) ; in a case concerning the right of possession, the parties 
are to be given joint possession (cfr. Canon 1697), if the judge 
remains doubtful (Canon 1869). 

1793. Sentence is to be pronounced after the final pleading, 
but, if the case is very complicated and difficult owing to the 
ereat amount of conflicting claims and documents, the judge 


CANONS 1866-1872 303 


may allow himself a proper interval of time before rendering 
the final sentence (Canon 1870). 

1794. In a collegiate tribunal, the presiding judge shall ap- 
point the day and hour when the judges are to meet to discuss 
the case. The meeting is to be held in the court-room, unless 
the peculiar nature of the case makes another place preferable. 
On the day appointed for the meeting each judge shall have 
ready in writing his conclusions on the merits of the case and 
the reasons from fact and law which prompted his opinion on 
the ease. These conclusions shall be added to the acts of the 
case and shall be kept secret. The judge who has acted as 
referee (ponens) in the case, shall first read his conclusions, 
then the other judges follow in the order of precedence, and 
finally there shall be a moderate discussion of the case under 
the direction of the presiding judge, chiefly for the purpose of 
determining the wording of the decisive part of the sentence. 
In the discussion each judge may abandon his former conclu- 
sion on the case. If the judges do not wish to or cannot reach 
an agreement on the sentence in the first discussion, the decision 
may be reserved for another meeting, but they may not adjourn 
for more than one week (Canon 1871). 

The Code does not explicitly state how a collegiate tribunal 
comes to the final sentence, but there is no doubt that it is to 
be done by voting and that the plurality of the votes decides the 
case (cfr. Canons 101 and 1873). 

1795. If there is only one judge in a ease, he alone frames 
the sentence; in a collegiate tribunal the judge who was ap- 
pointed as referee (ponens) in the case (cfr. Canon 1584) frames 
and writes the sentence (Canon 1872). 

1796. The sentence must: 

(1) settle the controversy litigated in court (1e., it must 
absolve or condemn the defendant in reference to the claims or 
accusations made against him, giving an appropriate answer to 
each of the doubts or points of the controversy) ; 

(2) determine as far as the nature of the case permits what 
the condemned party must give, do, take upon himself, suffer, 
or refrain from; also in what manner, at what place and time 
the obligation is to be fulfilled ; 

(3) contain the reasons or motives in fact and law on which 
the decisive part of the sentence is based ; 


304 A PRACTICAL COMMENTARY 


(4) settle the question of the cost of the trial (i.e., who is to 
bear it and how much is to be paid). 

In a collegiate tribunal the motives are to be taken by the 
referee who writes the sentence from those things which the 
judges said in the discussion, unless the plurality of judges has 
agreed on and determined which motives should be given in the 
sentence (Canon 1873). 

1797. Every sentence must in its opening words contain an 
invocation of the Divine Name. Furthermore, it must state— 
and in the following order—the names of the judge or judges, of 
the plaintiff, defendant, and proxies (properly designating their 
domiciles), and of the prosecutor or defensor vincult, if either 
took part in the trial. Then follows a brief statement of the 
case itself, together with the claims made by the parties, and 
finally the decisive part of the sentence prefaced by the reasons 
on which it is based. It shall close with the date and place when 
and where it was framed, and be subscribed by the judge—or 
by all the judges, if there were several—and by a notary (Canon 
1874). 

If several judges conduct a trial in an ecclesiastical court, 
and the sentence is subscribed to only by the presiding judge 
and the notary of the court, the sentence is invalid in accordance 
with a declaration of the Committee for the Authentic Interpreta- 
tion of the Code, July 14, 1922 (Acta Ap. Sedis, XIV, 528). 

1798. The above-mentioned rules are to be observed espe- 
cially in issuing a final sentence, but, in so far as the difference 
of the affair permits, they are also to be observed in interlocutory 

-gentences (Canon 1875). 

1799. When a sentence has been properly framed, it should 
be published as soon as possible (Canon 1876). The publication 
of a sentence can be done in three ways, either by summoning the 
parties to hear the sentence solemnly read by the judge sitting 
in court, or by notifying the parties that the sentence is at the 
chancery of the court and giving them permission to read it and 
to get copies of it, or, where such is the custom, by sending a copy 
of the sentence by registered mail (cfr. Canon 1719), in which 
ease care must be taken to have proof that the parties actually 
receive the sentence (Canon 1877). 

Canon Law ordains that all cases in court be tried by the 
judge, and in some eases by a collegiate tribunal of three or five 


Se ee 


CANONS 1873-1877 305 


judges. In the secular system of courts, the courts of equity 
come nearest to ecclesiastical courts and procedure, except that 
the secular courts of equity have no jurisdiction in criminal 
cases, whereas the ecclesiastical courts have jurisdiction in both 
civil and criminal cases. In England and the United States, the 
trial by jury is the ordinary manner of trying cases in courts of 
law (as distinguished from courts of equity). The jury usually 
consists of twelve men chosen by the court. They are present at 
all sessions of a case in which evidence is furnished and at the 
summing up of the evidence by the attorneys for plaintiff and 
defendant, and, after the court has instructed the jury on the 
law applicable to the case, they retire to deliberate in whose 
favor sentence should be pronounced. Their decision is called 
the ‘‘verdict,’’ and, when they have reached a unanimous verdict, 
they return to the court room and announce that they find for 
the plaintiff or the defendant (in civil cases), or that the accused 
(in criminal cases) is or is not guilty. The statutes of each state 
determine the civil cases in which trial by jury is eranted, and 
usually have rules to the effect that the defendant may waive 
trial by jury. In criminal cases the Constitution of the United 
States guarantees to the accused the right of trial by jury. 

In the secular courts, the matter of appeal (i.e., the removal 
of a cause to another court for retrial) is regulated by the 
statutes of each state. ‘‘The requisites for effecting an appeal 
are, generally, the giving of notice of intention to appeal, and 
the giving of a bond, conditioned that the appellant will prose- 
cute his appeal without delay, and will perform the judgment 
of the appellate court. The appeal deprives the lower court of 
further jurisdiction as to the matter appealed, and vacates the 
judgment, and also the rulings on demurrer entered by such 
court; and, if the lower court did not have jurisdiction of the 
subject matter of the action, the higher court cannot acquire 
jurisdiction by appeal’’ (Phillips, ‘‘Principles of Pleading,’’ 
n. 524). 


TITLE XIV 
OF LEGAL REMEDIES AGAINST THE SENTENCE 


1800. If material errors have crept into a sentence, either in 
transcribing the decisive part of the sentence, or in relating the 


306 A PRACTICAL COMMENTARY 


facts, or the claims of the parties, or in calculations (e.g., wrong 
additions of sums, ete.), the judge himself may correct the error. 
The judge shall make the correction by issuing a decree to that 
effect at the request of a party, unless the opponent objects. Lid 
the opponent objects, it is considered like an incidental question 
which is to be settled without the formalities of a trial (cfr. 
Canon 1840) by decree of the judge, and this decree shall be 
added at the foot of the corrected sentence (Canon 1878). 


CHAPTER I 


OF THE APPEAL 


1801. A party who feels agerieved over a sentence, and also 
the prosecutor or the defensor vinculi In cases in which either 
took part, have the right to appeal from the sentence (i.e., have 
recourse to the superior judge against the sentence of an in- 
ferior), unless it 1s a case (cfr. Canon 1880) in which the law 
does not permit appeal (Canon 1879). 

1802. There is no appeal: 

(1) from the sentence of the Supreme Pontiff himself or 
from the Signatura Apostolica; 

(2) from the sentence of a judge who has been delegated by 
the Holy See to judge a case with the clause barring appeal 
(appellatione remota) ; 

(3) from a sentence vitiated by an invalidating defect (cfr. 
Canon 1895; below, n. 1815) ; 

(4) from a sentence which has made a matter irrevocably 
adjudged (res judicata) ; 

(5) from a final sentence which is based on an oath taken to 
end litigation in a case (cfr. Canons 1834-1836) ; 

(6) froma decree of the judge or from an interlocutory sen- 
tence which does not have the force of a final decree or sentence, 
but in the appeal from the final sentence one can appeal also 
from the decrees and interlocutory sentences ; 

(7) from a sentence in a case in which the law demands that 
the matter be most speedily settled; 

(8) from a sentence against a person guilty of contempt of 
court, who has not made satisfaction for his contempt; 

(9) from a sentence against a person who has explicitly and 
in writing stated that he renounced the right to appeal (Canon 
1880). 


oh oe aes 


CANONS 1878-1885 307 


1803. The appeal must be presented to the judge from whose 
sentence appeal is taken within ten days from the notice of the 
publication of the sentence (Canon 1881). The appeal may be 
made orally before the judge sitting in court, if the sentence is 
read publicly, and the appeal must then be immediately written 
down by the actuary; otherwise, it must be made in writing, 
unless the party cannot write (cfr. Canon 1707) either through 
lack of knowledge or some legitimate impediment (Canon 1882). 

1804. The appeal must be prosecuted at the court of the 
judge to whom the appeal is made within one month from the 
placing of the appeal in the lower court, unless the judge before 
whom the appeal was made has granted the party more time to 
prosecute the appeal (Canon 1883). For the prosecution of the 
appeal it is required and suffices that the party petition the 
services of the judge of the superior court for the correction of 
the sentence from which one appeals, adding to the petition a 
copy of the sentence and of the written appeal which one pre- 
sented to the judge of the inferior court. If the party cannot 
obtain a copy of the attacked sentence from the lower court 
within a month, the fact that the month expired does not bar 
appeal, but the party must inform the court of appeal of the 
circumstance, and this court shall force the judge of the lower 
court by precept to do his duty as soon as posible (Canon 1884). 

1805. If one of the litigating parties dies or loses the office 
by reason of which he is a party to the case (cfr. Canon 1733) 
within the time set for the appeal but before the appeal was 
taken, the sentence must be communicated to those who inherit or 
succeed to the rights of the party, and the term fixed by law for 
the appeal begins to run for the new parties from the day when 
the sentence was announced to them. If the death or removal 
from office happens after the appeal has been presented, the 
successors shall be notified of the pending appeal, and the time 
set in law for the prosecution of the appeal begins to run from 
the day on which they were notified of the pendency of the 
appeal (Canon 1885). 

1806. If the parties fail to act within the terms set for the 
appeal (1.e., either fail to appeal within ten days after they had 
knowledge of the publication of the sentence, or having made the 
appeal fail to prosecute it in the superior court within one month 
from the day on which they presented the appeal to the judge of 


308 A PRACTICAL COMMENTARY 


the lower court), the appeal is considered dropped (Canon 
1886). The effect is disastrous for the cause, for by the failure 
to appeal or to prosecute the appeal in due time the case becomes 
irrevocably adjudged (res judicata), except only in certain 
classes of cases (cfr. Canons 1902-1905), and no appeal is pos- 
sible afterwards. 

1807. The appeal made by the plaintiff benefits the defend- 
ant, and vice versa. If appeal has been taken by one of the parties 
on some point of the sentence, the opponent can incidentally 
appeal on other points of the sentence, though the term set for 
the appeal has expired; the opponent can make this appeal under 
condition also to recede, if the first party renounces the appeal. 
If the sentence contained several points, and the appellant at- 
tacks only some of the points, the other points are considered. 
excluded from the appeal; if he did not specify any point in 
particular, the appeal is considered directed against all points 
of the sentence (Canon 1887). 

1808. If one of several defendants or plaintiffs attacks the 
sentence, it is considered made by all whenever the object of the 
claim is indivisible or the obligation joint and several, but the 
cost of the appeal must be borne by the appellant alone, if the 
judge of the court of appeal confirms the first sentence (Canon 
1888). 

1809. An appeal in suspensivo suspends the execution of the 
sentence, and thus the full force of the principle apples that 
‘“nending the litigation no innovation shall be made.’’ An appeal 
in devolutivo only does not suspend the execution of the sentence, 
though the litigation is still pending as to the merits of the case. 
Every appeal is in suspensivo, unless the law explicitly states 
otherwise. In certain cases (cfr. Canon 1917), the judge may 
order a provisional execution of a sentence notwithstanding the 
pending appeal in suspensivo (Canon 1889). 

1810. An appeal having been made, the court to which it has 
been presented must forward to the court of appeal an authentic 
copy or the original acts of the case in the manner prescribed by 
Canon 1644 (Canon 1890). 

1811. As no new cause of complaint may be added in the 
court of appeal, not even by way of useful cumulation, the join- 
ing of issues, by which the precise question to be settled by the 
court is fixed, ean deal only with the questions whether the first 








CANONS 1886-1893 309 


sentence is to be confirmed, or whether it is to be reversed either 
entirely or partly. If new documents and new proofs are offered, 
they may be added to the case by the court of appeal, provided 
there are legitimate reasons (cfr. Canons 1786, 1861) why the 
documents and proofs were not presented in the previous trial of 
the case (Canon 1891). 

The court of appeal has the purpose of examining the sen- 
tence of the lower court and the evidence which was presented 
in the case by the parties. It is not to make a new case of it, and 
therefore the law admits presentation of new evidence, docu- 
ments or witnesses, only under severe precautions (cfr. Canons 
1786, 1861). If witnesses are summoned or new documents are 
admitted, the court of appeal must observe the laws of the Code 
on witnesses (cfr. Canons 1754-1791) and on proof by docu- 
ments (cfr. Canons 1812-1824). 


CHAPTER II 


_OF THE COMPLAINT OF NULLITY AGAINST THE SENTENCE 


1812. The sentence is vitiated by incurable nullity in the 
following cases: 

(1) if it has been issued by an absolutely incompetent judge. 
or in a collegiate tribunal by an insufficient number of judges in 
violation of Canon 1576 (cfr. Canons 1556-1568 on competent 
court) ; | 

(2) if it has been issued to parties of whom at least one had 
no right to stand in court (cfr. Canons 1646-1654) ; 

(3) if somebody acted in the name of another without a 
legitimate mandate (Canon 1892). 

1813. The nullity spoken of in Canon 1892 may be proposed 
either after the manner of an exception (which, as it may be 
raised at any future time, the Code ealls perpetual, efr. Canon 
1667) ; or it may be brought after the manner of an action before 
the judge who issued the sentence, but such a suit can be brought 
only within thirty years from the date of the publication of the 
sentence (Canon 1893). The difference between the two ways of 
availing oneself of the complaint of nullity appears, for example, 
in a case where a party sued a priest in the bishop’s court over a 
piece of land, the private property of the priest. Supposing the 
diocesan court gave sentence in favor of the plaintiff, and that 


310 A PRACTICAL COMMENTARY 


many years afterwards the heir of the priest goes over the case 
and finds in the acts one of those so-called incurable nullities of 
the sentence. If the thirty years have elapsed, he cannot bring 
the action, but if, in connection with the same property, the for- 
mer plaintiff or his heir has a lawsuit with the priest or his heir, 
the priest or the heir may raise the nullity by way of an excep- 
tion, no matter how many years have elapsed since the pro- 
nouncement of the sentence. 

1814. The sentence is vitiated by a curable nullity: 

(1) if there was no legitimate summons; 

(2) if the sentence does not contain the motives or reasons 
for the decision, with the exception of the sentences of the Sig- 
natura Apostolica which are valid without stating the reasons 
(efr. Canon 1605) ; 

(3) if the sentence is not subscribed by the persons who 
must subscribe it (efr. Canon 1874) ; 

(4) if it does not bear the year, month, day and place when 
and where it was issued (Canon 1894). — 

1815. The complaint of nullity in the cases enumerated in 
Canon 1894 may be proposed either together with the appeal 
within ten days, or separately and by itself as an action on the 
nullity which must be brought before the judge who issued the 
sentence within three months from the date of publication of the 
sentence (Canon 1895). If a party fears that the judge who 
pronounced the sentence which is attacked for nullity may be 
prejudiced, and for that reason justly suspects him, he may 
demand that another judge, but in the same court, be substituted 
in accordance with Canon 1615 (Canon 1896). 

1816. The complaint of nullity may be brought not only by 
the parties who think themselves aggrieved, but also by the prose- 
cutor or the defensor vincult, whenever either took part in the 
trial. Even the judge may ex officio cancel an invalid sentence 
issued by him, and amend it within the terms stated above for 
acting on its nullity (Canon 1897). 

The procedure of Canon Law which is called ‘‘querela nulli- 
tatis contra sententiam’’ corresponds to the ‘‘motion for a new 
trial’’ in the secular courts of the United States. A new trial 
may be obtained upon motion of the party agerieved, setting 
forth specifically the grounds upon which he assails the verdict 
or decision. ‘‘The grounds upon which a new trial may be 


CANONS 1894-1898 oll 


sranted are specified by statute, and generally embrace the fol- 
lowing: Irregularity in the proceedings of the court, jury, or 
prevailing party, whereby the complaining party was prevented 
from having a fair trial; misconduct of the jury, or of the pre- 
vailing party; accident or surprise that could not be guarded 
against; that the verdict or decision is contrary to the evidence, 
or to the law; error of law occurring at the trial, such as mis- 
direction to the jury, or the admission or rejection of evidence 
contrary to law, and excepted to at the time; newly discovered 
evidence, material to the party, and which he could not, with 
reasonable diligence, have discovered and produced at the trial; 
and that the damages awarded are excessive’’ (Phillips, ‘‘ Prin- 
ciples of Pleading,’’ n. 523). If the judge overrules the motion 
for a new trial and the one who makes the motion excepts, he has, 
besides the appeal, a right to the ‘‘review in error’’ in the higher 
court. The reviewing court is limited to an examination of 
matters of law, appearing on the face of the record, and pre- 
sented to the court by assignments of error in the complaint in 
error. If, therefore, the party bringing an action in error desires 
the higher court to consider the alleged mistakes of the trial 
judge in the rulings on the evidence (e.g., admissibility, rele- 
vancy, ete.), the party must obtain from the trial judge a bill of 
exceptions so that it be made part of the record of the ease, 
because the review in error can consider only what is on the 
record. 


CuHapter III 


OF THE OPPOSITION OF A THIRD PARTY 


1817. If the precept of a definite sentence infringes on the 
rights of others (besides the parties in the case), they have the 
extraordinary remedy which is called ‘‘opposition of a third 
party,’’ by means of which persons who fear injury to their 
rights from the sentence may, before the execution of such sen- 
tence, attack and oppose it (Canon 1898). 

Third parties who have a real interest in the matter in litiga- 
tion between two contending parties have a right to intervene 
at any stage of the trial (efr. Canons 1852-1853), and, if they 
desire to guard their rights, they must act in due time. Canon 
1853 entitles the judge of his own motion to order the interven- 


312 A PRACTICAL COMMENTARY 


tion of third parties, if that seems necessary to do justice in the 
case. It may, however, happen that third parties whose inter- 
ests are affected by the decision in a case had no notice of the 
litigation until judgment is rendered and execution ordered by 
the court. To stay the execution of the sentence the former 
Canon Law granted to such third parties the right of appeal, 
_ which was an extraordinary concession inasmuch as, under the 
general rules of law, persons who are not parties to a trial have 
no right to appeal from the sentence in the trial. The new Canon 
Law has ereated a more expeditious remedy by granting third 
parties the right to stay the execution of the sentence, by apply- 
ing either to the same court which issued the sentence, or to the 
court of appeal, stating their claim. If they apply to the same 
court, the formalities of ruling on the claim and the consequent 
modification of the sentence, if the claim is allowed, are very 
simple, for it suffices to treat the claim after the manner of an 
incidental cause (cfr. Canons 1837-1841) ; but, if they apply to 
the higher court, the laws on appeal are to be observed, which 
means a new trial of the cause. 

1818. The opposition may be made in either of two ways at 
the option of the party: either by asking the judge who issued 
the sentence to review it, or by appealing to the superior judge. 
In either case the opponent must prove that his rights are 
actually or probably injured by the sentence. The injury must 
arise from the sentence itself, either because the sentence is the 
cause of the injury, or because, if the sentence is executed, the 
complainant will be greatly prejudiced. If neither cause for 
complaint is proved, the judge shall decree the execution of the 
sentence notwithstanding the opposition of the third party 
(Canon 1899). 

1819. If the opposition of the third party is admitted, and 
the complainant appears before the court of appeal, he must fol- 
low the laws of the Code for appeals; if he appears before the 
same judge who issued the sentence, the rules on incidental cases 
are to be observed (Canon 1900). If the complainant wins his 
ease, the sentence which was first issued must be changed by the 
judge so as to relieve the opponent from any injury through the 
sentence (Canon 1901), 





CANONS 1899-1904 313 


TITLE XV 


OF THE RES JUDICATA AND REINSTATEMENT IN 
FORMER POSITION 


1820. The term res judicata implies that a case is considered 
irrevocably adjudged, so that it cannot be opened again by any 
court in ordinary procedure. The only possible way in which the 
case may be brought into court again is by obtaining the benefit 
of reinstatement into the position which one had before the case 
became a res judicata. 

A ease is considered irrevocably adjudged: 

(1) if two uniform sentences have been issued ; 

(2) if no appeal was made within the proper time from a 
sentence, or if an appeal was presented to the judge who issued. 
the sentence but the appeal was not prosecuted in the superior 
court by the appellant; 

(3) if it is one of those final sentences from which no appeal 
is granted, as enumerated in Canon 1880 (Canon 1902). 

1821. Cases concerning the state of persons never become 
irrevocably adjudged, but, if two uniform sentences have been 
issued in these cases, they have the effect that further litigation 
in court is not to be admitted unless new and weighty arguments 
or documents are exhibited (Canon 1903). 

The Code does not state what the ‘‘cause de statu persona- 
rum’’ are. Very likely the three states induced by marriage, by 
sacred orders and by religious profession are meant.** 

1822. An irrevocably adjudged case is by an absolute pre- 
sumption (juris et de jure) considered true and just, and cannot 
be directly attacked. Besides, an irrevocable sentence makes law 
as to the parties, and, if one of the parties attempts to bring the 
other party to court on the same matter, the latter has the right 
to raise the exception of res judicata and thus bar further pro- 
ceedings (Canon 1904). 

Any judicial sentence (even that which has become a res 
judicata) creates rights and obligations between the parties only, 
but the judgment against a party is judgment also against third 
parties, who stand in privity with the original party (e.g., if the 


21 Noval, ‘‘De Judiciis,’’ n. 675; Vermeersch-Creusen, ‘¢Epitome,’’ IIT, 
n. 245. 


314 A PRACTICAL COMMENTARY 


bishop’s court has ruled that some person has the right of way 
over a certain piece of land owned by a certain church, and that 
church in the course of time sells the land to another party who 
wants to stop the right of way of the other, the latter can sue 
on the former judgment which binds the grantee for reason of 
privity with the grantor). 


REINSTATEMENT IN ONE’S FORMER POSITION 


1823. If neither the remedy of appeal nor the complaint of 
nullity is available against a sentence, one may have recourse to 
the extraordinary remedy of reinstatement in one’s former 
position within the limitations specified in Canons 1687-1688, 
and provided that the injustice of the res judicata is manifest. 
The injustice is not considered manifestly established unless: . 

(1) the sentence was based on documents which were later 
found to be false; 

(2) documents were afterwards discovered which peremp- 
torily prove new facts of such a nature that they demand a con- 
trary decision ; 

(3) the sentence was issued to the damage of one party by 
the fraud of the other ; 

(4) a precept of law was evidently neglected (Canon 1905). 

The last-mentioned flaw—the ‘‘evident neglect of a precept 
of law’’—has reference to the legal formalities in the trial of a 
case. Just what neglect entitles a person to ask for reinstatement 
is not specified in the Code, nor do the commentators who have 
commented on this Canon of the Code throw light on the subject. 
The term used by the Code (precept of law) is so general that it 
seems to include, not only neglect of a rule of procedure which 
causes the nullity of an act, but also neglect of other rules which 
are couched in the form of command in the procedural law of the 
Code. 

1824. The judge who issued the sentence is competent to 
erant reinstatement in the former position, except in the case in 
which it is petitioned for reason of neglect by the judge of a 
precept of law, in which case the reinstatement is granted by the 
court of appeal (Canon 1906). 

1825. The petition for reinstatement in one’s former position 
suspends the sentence, if the execution of it has not yet begun. 





CANONS 1905-1909 315 


If, however, probable indications give reason to suspect that the 
petition was made for the purpose of delaying the execution, the 
judge may order that the sentence be executed, but the petitioner 
of the reinstatement must be given sufficient security that he 
will be indemnified in case reinstatement is granted to him 


(Canon 1907). 


TITLE XVI 


OF THE COSTS OF TRIALS AND OF GRATUITOUS 
LEGAL SERVICE 


CHAPTER I 


OF THE COSTS OF TRIALS 


1826. In civil cases the parties may be forced to pay a certain 
sum in view of the judicial expenditures, unless they are ex: 
empted from this burden in accordance with the provisions of 
Canons 1914-1916 (Canon 1908). 

1827. The bishops of an ecclesiastical province in a Provincia! 
Council, or in a convention, should fix a schedule of taxes, and 
define the amounts to be paid by the parties for judicial ex- 
penditures (e.g., summons, notifications by the court, indemnity 
of witnesses, decrees issued by the court, time and labor of the 
officials of the court) ; furthermore, the fees of the attorneys and 
proxies employed by the parties, fees for the translation and 
transcription of instruments, for their comparison with the 
originals and the attestation that they are true copies, and for 
the copying of documents from the archives. The judge may at 
his diseretion demand that a deposit be made in advance with 
the chancery of the court, or sufficient security given to cover 
the costs of the court, and the indemnification of the witnesses. 
The plaintiff must guarantee the costs for acts which the court 
has to do in its official capacity; the party who requests that 
witnesses and experts be summoned, must vouch for their costs 
(Canon 1909). 

1828. The party who loses the case must as a rule repay to 
the winner the costs of both the principal case and any incidental 
case which developed from the main case. If either the plaintiff 
or the defendant litigated without justification, the guilty party 
must be condemned also to repair the damages—e.g., for vexa- 


316 A PRACTICAL COMMENTARY 


tion of the other party, loss of time, labor and fatigue suffered, 
ete. (Canon 1910). | 

1829. If the pleas of the plaintiff or the defendant were only 
partially upset, or if the litigation was between blood-relations 
or relations by marriage, or the case dealt with a very difficult 
question, or if there is any other just and grave reason, the judge 
may at his discretion distribute all or a portion of the costs of 
the trial among the parties. In the sentence he shall state (cfr. 
Canon 1873) the cost of the trial, by whom and how it is to be 
paid (Canon 1911). If several persons in a case deserve to b2 
condemned to pay the cost of the trial, the judge shall condemn 
them jointly and severally, if there is question of an obligation 
which is joint and several; otherwise he shall condemn them to 
pay each proportionately (Canon 1912). If several persons are 
made liable for the entire cost (in solidwm) and one pays the 
whole cost, he has of course the right to demand that the other 
parties held lable with him jointly and severally reimburse him 
for their proportionate share of the cost. 

1850. From the ruling of the court on the expenditures no 
strict appeal is permitted, but the party who believes himself 
agerieved may within ten days raise an objection before the 
Same judge, who can again consider this matter and correct and 
change the ruling on the costs. An appeal from the sentence of 
the principal cause implies an appeal from the ruling on the costs 
of the trial (Canon 1913). 


CHAPTER II 


OF GRATUITOUS LEGAL SERVICE AND REDUCTION OF JUDICIAL 
EXPENDITURES 


1831. The poor who are not able to make any payment at all] © 
towards the judicial expenditures, have the right to free legal 
service; and, if they are able to pay only part of the expendi- 
tures, they are entitled to a reduction (Canon 1914). 

A party who desires to obtain exemption from or reduction 
of the expenses, must petition the judge for it by written request 
and exhibit documents which show his condition and the amount 
of his worldly possessions ; besides, he must prove that he does not 
engage in futile or rash litigation. The judge shall neither admit 
nor reject the petition, until he has obtained, if necessary, even 





CANONS 1910-1915 317 


confidential information from which he can get certain knowledge 
of the financial standing of the petitioner, and has given a hearing 
to the prosecutor. Even after it has been granted, the judge 
may revoke the exemption or reduction, if in the course of the 
trial he ascertains that the assertion about the poverty of the 
petitioner was untrue (Canon 1915). 

Canon Law does not specify the term ‘‘pauperes,’’ but leaves 
it to the discretion of the judge to decide whether a person is 
entitled to the remission either of the entire cost of the trial or of 
a part thereof. Wherefore, Canon 1915 demands that, in the 
petition for partial or entire remission of the costs, the peti- 
tioner shall give an exact account of his financial standing. It 
is evidently necessary that the statement concerning his inability 
to pay the costs of the trial be endorsed by trustworthy persons 
known to the court (e.g., the pastor of the party), whom the 
court may question on their knowledge of the financial condition 
of the party. There is no doubt that persons who earn wages 
which furnish the person and his dependants no more than mere 
sustenance, though they are not living in abject poverty, are to 
be called poor. Even those working people who by frugality 
have in the course of many years paid for their own home, but 
have no further reserve funds and must rely on their wages or 
salary for their sustenance, are in the common estimation of the 
people in the United States to be considered poor. The Ordinary 
at the request of the judge is to appoint an attorney for the 
poor, who shall render legal services gratuitously to the party 
whom the judge believes entitled to free service. To act as attor- 
ney for a client in court, the approval of the Ordinary is neces- 
sary (cfr. Canon 1658), and that approval may be given gen- 
erally for all cases in the diocesan courts or for an individual 
case only. As in the United States the dioceses usually have no 
men appointed as regular ecclesiastical attorneys, the Ordinary 
would have to request some priest or layman to serve the poor 
client. Persons who are so poor as to stand in need of alms for 
their sustenance, are certainly entitled to charitable service. As 
to other poor persons who are able to support themselves without 
appeal to charity, the words of Canon 1914 apply, namely, if they 
can pay only part of the cost of a trial, the judge should reduce 
the charges for the various items of cost. 

1832. For the gratuitous legal service of the poor the judge 


318 A PRACTICAL COMMENTAR 


shall in each case appoint one of the attorneys approved in his 
court, and that attorney cannot refuse his services except for a 
reason approved by the judge; otherwise, he may be punished 
with an appropriate penalty and even with suspension from the 
office of attorney. If there are no approved attorneys, the judge 
shall request the local Ordinary to appoint, if necessary, another 
qualified person to render legal services to the poor (Canon 
1916). | 
TITLE XVII 


OF THE EXECUTION OF THE SENTENCE 


1833. A sentence which has become irrevocably adjudged 
(res judicata) may be executed. The judge, however, can order 
the provisional execution of a sentence which has not yet become 
irrevocably adjudged in the following cases: 

(1) in the case of making provisions or payments for the 
necessary maintenance of a party (provisionibus .. . ad néces- 
sariam sustentationem ordinatis) ; 

(2) if grave necessity urges the execution, but, if the pro- 
visional execution is granted, the rights of the other party must 
be guaranteed by sufficient bail or bonds or securities, lest the 
execution should have to be revoked (Canon 1917). 

Some commentators 2? translate the Latin ‘‘ordinatis’’ as 
‘‘ordained men,’’ and consequently refer this case to main- 
tenance of clerics only. It is not evident that the term ‘‘ordi- 
natis’’ here refers to clerics, for the Code never uses that term 
by itself and apart from laws dealing with the clergy to indicate 
clerics. In our opinion the word is not used in any technical 
sense, but is merely the perfect participle passive of ‘‘ordinare’’ 
(to settle or appoint). 

1834. The execution cannot take place before the judge has 
issued the decree of execution by which he states that the sen- 
tence must be executed. According to the divers nature of the 
eases this decree may be either included in the wording of the 
sentence itself, or may be issued separately (Canon 1918). 

1835. If accounts have to be rendered before the sentence 
can be executed, the rendering of the account is to be treated 
like an incidental case or question, and is to be decided in con- 


22 Wichmann, ‘‘Prozessrecht,’’ 190; Haring, ‘‘Grundziige des kath. 
Kirchenr.,’’ 887; Perathoner, ‘‘ Kirchliches Gerichtswesen,’’ 60. 





CANONS 1916-1922 ol9 


formity with the rules of law by the same judge who issued the 
sentence which is to be executed (Canon 1919). 

1836. The sentence is to be executed by the local Ordinary 
of the place where the sentence of the first instance was issued, 
or by his delegate; if he refuses or neglects to execute the sentence, 
the execution pertains to the judge of the court of appeal, who 
can act either at the request of the party interested or ex officio. 
Among religious the execution of the sentence pertains to the 
superior who issued the final sentence or delegated the judge 
(Canon 1920). 

1837. The executor of the sentence must execute the sentence 
according to the obvious meaning of its words, unless the tenor 
of the sentence itself permits him to use some discretion in the 
matter. He is permitted to consider objections relative to the 
manner and extent of the execution, but not to the merit of the 
case. If he knows from other sources that the sentence is mani- 
festly unjust, he shall refrain from executing it, and refer the 
party who demands the execution to him who committed it to the 
executor (Canon 1921). If the executor is a delegate of the 
local Ordinary, he refers the party to the Ordinary, who in turn 
directs him to the judge who issued the sentence. 

1838. In the case of real actions (i.e., cases in which the 
plaintiff tries to obtain the thing or property itself), the object 
which was adjudged by the sentence to belong to the plaintiff 
must be given to him as soon as the sentence has become irre- 
vocably adjudged. In personal actions, when the defendant has 
been condemned to give some movable property, or to pay a sum 
of money, or to give or do anything else, four months are granted 
within which he must comply with the sentence. The judge may 
reduce or extend the period of four months, but may not reduce 
it to less than two or extend it to more than six months (Canon 
1922). 

The Code does not specify what actions are real and what 
actions are personal. Generally, real actions concern, says Lega, 
either the ownership of goods or rights over the property of 
others (e.g., right of way over land, mortgage on the land of 
another, or hereditary rights, or rights of the family and state of 
life). Personal actions, according to the same authority, arise 
either from contracts, or quasi-contracts, or from offenses, or 
quasi-offenses, or from the law itself (e.g., the complaint of 


320 A PRACTICAL COMMENTARY 


threatened injury from new work attempted by another, cfr. 
Canons 1676-1678 ).?3 

Though Canon 1922 states that the execution of a sentence in 
a real action, as distinguished from a personal action, must be 
granted to the successful party in the trial immediately after the 
sentence has become irrevocably adjudged, it is nevertheless 
necessary to obtain the decree of execution, unless it is contained 
in the sentence itself, for Canon 1918 states absolutely that no 
sentence can be executed without an order or decree of the judge 
who pronounced the sentence. _ In a real action, therefore, the 
party in whose favor judgment was rendered can as soon as the 
case becomes irrevocably adjudged obtain the decree of execution 
and its immediate application. In personal actions, the party 
who lost the suit has four months’ respite after the decree of 
execution has been issued. 

In the secular courts, just as in Canon Law, the judgment or 
sentence is considered to determine the relative rights and obliga- 
tions of the parties to the suit, but it does not of itself operate 
the execution of the judgment. As a rule, the statutes of each 
state decree the manner of executing final judgments: this is 
usually done by an order of the court to the sheriff of the county 
where the judgment debtor resides, or where the real property 
is located against which the execution is to be made. 

1839. In the execution of a sentence the executor must take 
care to injure as little as possible the party who lost the suit. 
Wherefore, he shall begin the execution by attaching things 
which are less necessary to him, and shall not touch things which 
he needs for his sustenance and for the exercise of his profession 
or trade. In the case of a cleric, the executor may not attach 
what he needs for respectable maintenance, as Canon 122 decrees. 
The judge shall not proceed to the execution of a sentence which 
deprives a cleric of his benefice if the cleric has taken recourse 
to the Holy See, but if it is a benefice to which the care of souls 
is attached, the Ordinary shall substitute a vicar to attend in the 
meantime to the eare of souls (Canon 1923). 

1840. The executor shall first employ admonitions and pre- 
cepts against a person who resists the execution, and he should 
not coerce him with spiritual penalties and censures except when 
necessary and then only by degrees (Canon 1924). 


23 Lega, ‘‘De Judiciis,’’ I, nn. 181-183. 


CANONS 1923-1925 32] 


Section II 


OF PARTICULAR REGULATIONS TO BE 
OBSERVED IN CERTAIN TRIALS 


TITLE XVIII 


OF THE WAYS OF AVOIDING CIVIL TRIALS 


CHAPTER I 


OF COMPROMISE 


1841. As it is highly desirable that litigation be avoided 
among the faithful, the judge shall admonish the parties between 
whom some civil controversy about their own private affairs has 
arisen and which they have taken to court to have it settled by 
judicial trial, to come to a compromise, if there appears to be 
some hope of a friendly settlement. The judge can satisfy this 
duty either before the parties are summoned to court or when 
they are for the first time in court, or finally at any time that he 
judges most opportune and effective for proposing a compromise. 
It is not, as a rule, becoming to the dignity of the judge to make 
the proposal personally; he should rather commit it to some 
priest, especially to one of the synodal judges (Canon 1925). 

The civil law also favors friendly settlements of disputed 
rights and claims, and encourages defendants to offer a compro- 
mise to the plaintiff by denying to the plaintiff who refused the 
offer the right to allege the offer in the course of the proceeding; 
as a proof that the defendant admitted plaintiff’s claim. The 
New York Practice Act states: ‘‘Before trial, the defendant may 
serve upon the plaintiff’s attorney a written offer to allow judg- 
ment to be taken against him for a sum, or property, or to the 
effect, therein specified, with costs. If there be two or more 
defendants, and the action can be severed, a like offer may be 
made by one or more defendants against whom a separate judg- 
ment may be taken. If the plaintiff, within ten days thereafter, 
serve upon the defendant’s attorney a written notice that he 
accepts the offer, he may file the summons, complaint, and offer, 
with proof of acceptance, and thereupon the clerk must enter 


322 A PRACTICAL COMMENTARY 


judgment accordingly. If notice of acceptance be not thus given, 
the offer cannot be given in evidence upon the trial; but, if the 
plaintiff fails to obtain a more favorable judgment, he cannot 
recover costs from the time of the offer, but must pay costs from 
that time’’ (§ 177). The same Act has the following on compro- 
mise by the plaintiff where the defendant sets up a counter-claim : 
‘(Where the defendant sets up a counter-claim to an amount 
greater than the plaintiff’s claim, or sufficient to reduce the 
plaintiff’s recovery below fifty dollars, the plaintiff may serve 
upon the defendant’s attorney a written offer to allow judgment 
to be taken against him for a specified sum, with costs, or against 
the defendant for a specified sum and against the plaintiff for 
costs. If the defendant, within ten days thereafter, serve upon 
the plaintiff’s attorney notice that he accepts the offer, either 
party may file the summons, complaint, answer, and offer, or 
copies thereof, and proof of acceptance; and thereupon the clerk 
must enter judgment accordingly. If notice of acceptance be not 
thus given, the offer cannot be given in evidence upon the trial; 
but, if the recovery be not more favorable to the defendant than 
that so offered, he will not be entitled to recover costs from the 
time of the offer, but must pay costs from that time’’ (§ 178). 
‘‘Unless an offer or an acceptance, made as prescribed in the 
foregoing sections, is subscribed by the party making it, his attor- 
ney must subscribe it and annex thereto his affidavit to the effect 
that he is duly authorized to make it in behalf of the party’’ 
(§ 179). 

1842. In the compromise the rules of the civil law of the place 
where the compromise takes place should be followed unless they 
contravene the divine or the ecclesiastical law. The precepts 
of the subsequent Canons must also be observed (Canon 1926). 

1843. A compromise cannot validly be made in criminal cases, 
nor in civil eases in which there is question of dissolving a mar- 
riage, nor in matters pertaining to benefices when there is litiga- 
tion about the title itself to a benefice, unless the legitimate 
authority sanctions the compromise, nor in spiritual matters 
whenever the compromise requires payment by means of tem- 
poral goods. In the case of temporal ecclesiastical goods and of 
those things which, though annexed to the spiritual, can be dealt 
with apart from their spiritual aspect (e.g., a consecrated chalice, 
a consecrated church or chapel), the compromise can be made, 


CANONS 1926-1930 323 


but the formalities of law for the alienation of ecclesiastical prop- 
erty must be observed, if the matter is of sufficient importance — 
(Canon 1927). 

1844. The effect of a compromise happily reached is called 
compositie or concordia (friendly settlement or agreement) 
The expenditures which had to be made to reach the settlement 
are to be borne in equal shares by the two parties, unless they 
explicitly made a different agreement (Canon 1928). 


CHAPTER IT 


OF COMPROMISE BY ARBITRATION 


1845. In order to avoid judicial litigation, the parties may 
also make an agreement by which the controversy is committed 
to the judgment of one or several persons who shall decide the 
dispute according to law, or deal with the affair according to 
the rules of equity. If they are to follow the rules of law, they 
are called arbitri; if they are to follow the dictates of equity, 
they are called arbitratores (Canon 1929). 

The distinction between the arbitri and the arbitratores has 
been adopted from the former Canon Law. The arbitri have 
quasi-judicial power to summon the parties, examine witnesses 
and in general proceed in the manner in which the judge of a 
court proceeds. For this reason the Code says that they are 
to decide the controversy according to law. From the decision 
of the arbitri appeal can be taken to the ordinary court to which 
the case would have gone if the parties had not agreed on the 
arbiirt. The other form of arbitration by the so-called arbi- 
tratores 1s the ordinary form of arbitration from which there 
is no appeal.*4 

1846. The rules of the civil law of the respective country 
are to be applied to arbitration (efr. Canon 1926), and the law 
of Canon 1927 relative to the cases which are not subject to 
settlement by friendly agreement applies also to arbitration 
(Canon 1930) 

Yn civil law the arbitration proceedings are usually settled 
by statute of the individual states. Generally speaking, the 
law encourages arbitration which means a trial of a controverted 
claim before one or more outside persons selected by the parties 


24 Lega, ‘‘De Judiciis Ecclesiasticis,’’ I, nn. 16-37. 


324 A PRACTICAL COMMENTARY 


for that purpose. The statutes also point out the cases in which 
arbitration is not permitted, e.g., the New York Practice Act 
rules that no arbitration can be made where one of the parties 
to the controversy is an infant, or a person incompetent to 
manage his affairs by reason of lunacy, idiocy or habitual drunk- 
enness; and in cases where the controversy arises respecting a 
claim to an estate in real property, in fee (title or ownership) 
or for life (§ 1448). The act by which parties commit the settle- 
ment of the disputed right or claim to arbitrators is called a 
submission, and the decision of the arbitrator is called an award. 
The statutes also regulate the formalities of the written agree- 
ment, its recording, and the manner of procedure of the arbitra- 
tors who, generally speaking, are authorized to hear testimony 
with the same powers as a board authorized by law to hear testi- 
mony. If several arbitrators are agreed on by the parties, they 
may specify whether the award is to be made by a majority 
of them or by concurrence of all. When the award is made, 
any party to the submission may within the time prescribed by 
statute (within one year according to New York Practice Act, 
§ 1456) apply to the court specified in the submission for an 
order confirming the award. If the court grants the order for 
confirmation, judgment is entered on the judgment-roll and it 
has the same effect as a judgment in an action, and an order 
of execution can be obtained from the court. The New York 
Practice Act grants appeal from the award in the same manner as 
appeal from a judgment in an action (§ 1464). 

1847. The office of arbiter cannot validly be held by lay per- 
sons in ecclesiastical cases, nor by persons excommunicated or 
marked with infamy by a declaratory or condemnatory sentence ; 
religious should not accept the office of arbiter without permission 
of their superior (Canon 1931). 

1848. If the parties do not agree on a friendly settlement 
nor on arbitration, their controversy must be settled by formal 
trial according to the procedure outlined in the First Section 
of Book IV (Canon 1932). 


CANONS 1931-1935 320 


TITLE XIX 
OF CRIMINAL TRIALS 


1849. Offenses which are subject to criminal procedure are 
public offenses. The offenses spoken of in Canons 2168-2194 
are not prosecuted in formal criminal trial, but by application 
of punishments in the manner specified in these Canons. In 
offenses subject to the jurisdiction of both the ecclesiastical and 
the civil court, the Ordinaries should not as a rule proceed 
against a culprit, if he is a lay person, and the secular court 
by proceeding against him has sufficiently safeguarded the pub- 
lie welfare. Penances, penal remedies, excommunication, sus- 
pension, and interdict can be inflicted also by way of precept 


without judicial procedure, provided the offense is certain 
(Canon 1933). 


CHAPTER I 


OF THE ACTION OF ACCUSATION AND OF DENUNCIATION 


1850. Criminal actions or accusations are reserved to the 
prosecutor alone, to the exclusion of all others (Canon 1934). 
Nevertheless, any of the faithful may at all times denounce 
the offense of another for the purpose of demanding satisfaction 
(e.g., for slander), or to get damages for losses sustained through 
the criminal act of another (which frequently happens in 
crimes), or out of zeal for justice to repair some scandal or 
evil. Even an obligation to denounce an offender exists, when- 
ever one is obliged to do so either by law or by special legiti- 
mate precept, or by the natural law in view of the danger to 
faith or religion or other imminent public evil (Canon 1935). 

The Code of Canon Law adopts the system of prosecution 
of offenders which is most generally followed in the criminal 
procedure in the various countries. The offender is brought to 
trial by the official whose office it is to prosecute offenders in 
the name of the state or the people, but in the United States 
the indictment or bill is presented by the prosecutor to the grand 
jury. The grand jury investigates and examines witnesses to 
ascertain whether the charge made against the accused is true, 
and if the number of grand jurors required by the statutes of 
the respective state vote in favor of sustaining the accusation 


326 A PRACTICAL COMMENTARY 


(4 


of the prosecutor, the foreman of the jury indorses it as ‘‘a 
true bill,’’ signs it, and returns it in open court. This pre- 
sentment in open court renders it an indictment. The number 
of persons who constitute the grand jury differs in the various 
states. At common law a full panel consists of twenty-three 
men, twelve of whom must concur in order to return an indict- 
ment. Where the statutes of the state have changed the number 
of the grand jury, they also specify how many must concur in 
finding a true bill. Usually the criminal cases come before the 
erand jury after an offender has been arrested and after a 
summary investigation before the magistrate who ordered the 
arrest, or under whose authority the arrest was made, has shown 
that there is probable cause for the arrest; the magistrate then 
orders the prisoner to be held for trial, either in prison or at 
bail given by a person responsible to the court for the appearance 
of the accused on the specified day. ‘‘In England the grand 
jury may institute on its own motion any prosecution it sees 
fit, and summon witnesses. A few American States follow this 
view. Another holding is that the grand jury can not act until 
after a preliminary examination of the accused before a magis- 
trate. The general rule in the United States is that the grand 
jury may inquire into offenses of which it has personal knowl- 
edge or which are of public notoriety, and such other offenses 
as it is called upon by the court or prosecuting officer to investi- 
eate, but cannot inquire into other offenses unless the accused 
has been examined before a magistrate’? (Hughes, ‘‘ Criminal 
Law and Procedure,’’ 1919, § 899). 

1851. The denunciation must be made by the denouncer in 
a signed document or orally to the local Ordinary, the chan- 
eellor of the Curia, deans, or pastors. If the denunciation is 
made orally, these latter must consign it to writing, and forward 
it at once to the Ordinary (Canon 1936). The person who de- 
nounces an offense must render assistance to the prosecutor to 
prove the offense (Canon 1937). 

Private individuals may participate in the accusation of a 
violator of law (which in Canon Law is ealled a ‘‘denuncia- 
tion’’), and they may denounce the wrongful action, not only 
for the redress of injuries which they may have suffered thereby, 
but also from zeal for law and order. In Canon Law the de- 
nunciation of the commission of an offense by private persons 


CANONS 1936-1938 Ce oy, 


is to be made to the Ordinary of the territory or to other officials 
of the Church, the chancellor of the diocese, or vicars-forane, or 
pastors, who must forward it to the local Ordinary. The Ordi- 
nary thereupon orders an investigation, and the denouncer must 
assist the prosecutor in obtaining the evidence. In the secular 
law of criminal procedure private individuals may also have 
an active part in setting the machinery of criminal prosecution 
in motion. A private citizen in the United States has the right 
to arrest offenders for the commission of certain violations of 
law specified by the statutes of each state, and, furthermore, 
he has a right to make complaint to the magistrate (who has 
authority to order an arrest) of the crime committed, offering 
to prove the same. In minor offenses (misdemeanors) the inter- 
vention of the grand jury is not necessary, but the so-called 
information of the prosecutor (i.e., the allegation of the prose- 
cutor that he believes there is sufficient evidence for instituting 
a eriminal action) suffices. The statutes of each state determine 
the particulars as to the cases and manner in which indictment 
without the grand jury is permissible. 

1852. In eases of injuries or defamation, the criminal pro- 
cedure cannot be instituted except on the denunciation or com- 
plaint of the injured party. If, however, a cleric or religious 
(especially an ecclesiastical dignitary) has been the victim or 
agent of an injury or grave defamation, the criminal action 
may be brought also ex officio (Canon 1938). 

Since injuries and defamation are ordinarily private affairs 
which do not impair the public welfare, the prosecuting attorney 
(promotor justitiw) of a diocese, religious order, ete., cannot 
institute proceedings against the offender in the name of the 
yublie authority. If, however, the public welfare demands that 
the person who was guilty of the injuries, slander, libel, ete., be 
punished (e.g., in view of the scandal given by insults, slander, 
ete., of a bishop, vicar-general, ete., or of the bad example and 
destructive influence of clerics and religious injuring or slan- 
dering other persons), the prosecuting attorney may in the name 
of the public authority begin action in criminal procedure against 
the guilty parties. 

The secular law follows the same principle, for it considers 
these offenses private wrongs and not crimes (i.e., a wrong which 
the government deems injurious to the public at large, and 


O29) ns A PRACTICAL COMMENTARY 


punishes through a judicial proceeding in its own name). The 
State will not prosecute for offenses which are of the nature of 
private wrongs, unless prosecution is insisted upon by complaint 
of a citizen. Usually the private wrongs are redressed by civil 
suit for damages, brought by persons who have suffered through 
the wrongful act or omission of others. 


CHAPTER II 


OF THE INVESTIGATION 


1853. If an offense is neither notorious nor altogether certain, 
but has become known through rumor and publie report, or 
through denunciation, or from complaint for damages, or trom 
general inquiry instituted by the Ordinary, or from any other 
cause, a special investigation must be conducted to ascertain 
whether and how far the incrimination is justified, before a 
person can be summoned to answer for his offense. This rule 
must be adhered to, whether there is question of inflicting a 
so-called vindicative penalty or a censure, or of issuing a declara- 
tory sentence of a penalty or censure to which one has become 
hable by the offense (Canon 1939). 

Canon 1933 states that, if the commission of an offense is 
certain, penances (cfr. Canons 2312-2313), penal remedies (cfr. 
Canons 2306-2311), excommunication, suspension, or interdict 
can be inflicted even by way of precept without judicial pro- 
cedure. Canon 1939 applies when the offense is not certain. 
In order to punish by way of precept, the certainty must be 
such that the crime can be fully proved against the accused, 
and the means to prove it are actually at hand, and the 
means must be also available to show that there is no excuse from 
liability for the offense. 

1854. Though this investigation may be made by the local 
Ordinary himself, it should as a general rule be committed to 
one of the synodal judges, unless the Ordinary has a special 
reason why he would rather commit it to somebody else (Canon 
1940). The inquisitor shall not be delegated generally for all 
cases, but, as often as a case arises, a man shall be delegated for 
the individual instance. The inquisitor has the same obliga- 


25 Noval, ‘‘De Judiciis Ecclesiasticis,’’ n. 772. 


CANONS 1939-1945 329 


tions as the ordinary judges, he must take the oath that he will 
keep the secret, and that he will faithfully attend to his office 
and abstain from accepting gifts, in accordance with the precepts 
of Canons 1621-1624. He cannot act as judge in the same cass 
(Canon 1941). 

Commentators discuss the question whether the last phrase 
of Canon 1941 (he cannot act as judge) makes him absolutely 
incompetent to sit as judge, if he conducted the investigation 
in the criminal case; and whether, therefore, an Ordinary who 
personally conducted the investigation would be incompetent 
to be judge in the case. Noval ?* interprets ‘‘cannot’’ in the 
sense of ‘‘may not,’’ but if, notwithstanding the prohibition 
the inquisitor acts as judge, he acts validly. Vermeersch- 
Creusen 2? rightly observe that the verb ‘‘nequit’’ expresses an 
inability to act. If the Ordinary has in person conducted the 
investigation, he should delegate a judge to try the case. 

1855. It is left to the discretion of the Ordinary to decide 
when there are sufficient reasons to institute the judicial investi- 
gation. No attention is to be paid to denunciations which come 
from a manifest enemy or from a vile and unworthy person, or 
to anonymous letters destitute of the qualities and elements 
which might make the accusation probable (Canon 1942). 

1856. The investigation must always be secret and conducted 
with the greatest caution, lest the rumor of the offense be spread 
thereby and the good reputation of any person be endangered 
(Canon 1943). For the purpose of ascertaining the truth, the 
investigator may summon persons whom he believes to have 
knowledge of the matter, and may interrogate them under oath 
to tell the truth and to maintain secrecy. In questioning them, 
the investigator shall, in so far as it is possible and the nature 
of the investigation permits, observe the precepts of Canons 
1770-1781, which deal with the examination of witnesses in 
court (Canon 1944). 

Before the investigator closes the investigation he may con- 
sult the diocesan prosecutor whenever he meets with a difficulty, 
and communicate to him the acts of the inquiry (Canon 1945). 

1857. When the investigation has been completed, the in- 
quisitor shall refer the acts of the investigation to the Ordinary, 


26 Noval, ‘‘De Judiciis Fcclesiasticis,’’ n. 774. 
27 Vermeersch-Creusen, ‘‘Epitome,’’ III, n. 264. 


330 A PRACTICAL COMMENTARY 


adding his own opinion. The Ordinary, or at his special man- 
date the judge of the Curia, shall by decree order: 

(1) that, if the denunciation scems to lack a solid founda- 
tion, a declaration to that effect be issued and added to the 
acts of the investigation, which are to be preserved in the secret 
archives of the Curia; 

(2) that, if there are indications of the offense but not suffi- 
cient proofs to institute a criminal trial, the acts be deposited 
in the said archives and the conduct of the suspected person 
be watched; and, if the Ordinary judges it advisable, the suspect 
shall be heard in the matter, and, if there is reason for doing 
so, admonished according to Canon 2307; 

(3) that, if there are certain or at least probable and suf- 
ficient reasons for instituting the criminal trial, the accused be 
Summoned to appear, and the procedure be conducted acecord- 
ing to the following Canons (Canon 1946). 


CHAPTER III 


OF THE REBUKE OF THE OFFENDER 


1858. If the accused when questioned confesses his offense 
the Ordinary may employ the judicial rebuke instead of criminal] 
procedure in all cases except those (cfr. Canon 1948) in whic: 
the law does not admit rebuke (Canon 1947). 

1859. Judicial rebuke is not admitted in the following cases: 

(1) in offenses which entail excommunication reserved to the 
Holy See in a most special or in a special manner (specialissimo 
vel speciali modo), the deprivation of a benefice, infamy, depo- 
sition, or degradation ; 

(2) when there is question of issuing a declaratory sentence 
of a so-called vindicative penalty or of a censure to which one 
has become liable by the offense. (The reason is that, when 
one has incurred a penalty ferend@ sententia, the ecclesiastical 
judge is not free to determine the penalty at his discretion, but 
is bound by the law to declare that the offender has incurred 
the penalty specified in law) ; 

(3) when the Ordinary deems a judicial rebuke insufficient 
to repair the scandal and satisfy justice (Canon 1948). 

1860. The judicial rebuke may be employed once or twice, 
but not a third time against the same offender (in the same 


CANONS 1946-1953 dol 


offense). Wherefore, if the offender after the second rebuke 
commits the same offense, criminal procedure must be instituted, 
or, if begun, continued according to the form of procedure out- 
lined in Canons 1954-1959 (Canon 1949). 

Provided Canons 1947-1948 are observed, the Ordinary may 
employ the judicial rebuke, not only before the criminal trial 
has commenced but also afterwards until the closing of the case. 
In the latter instance the trial is suspended, unless it has to be 
resumed bezause the rebuke brought no results—i.e., because 
the offender after a second rebuke again committed the same 
offense (Canon 1950). | 

1861. The rebuke may be employed also in eases in which 
a party instituted action against the offender for reason of 
injury suffered from his offense. In this case the Ordinary may, 
if the parties consent, determine the question of damages ac- 
cording to the rules of equity. If the Ordinary believes that 
the question of damages cannot easily be determined under the 
rules of equity, he may administer the rebuke to provide for 
the reparation of scandal and the amendment of the offender, 
and remit the civil suit as to damages to the court to be de- 
cided by civil trial (Canon 1951). 

1862. The judicial rebuke must as a rule contain, not only 
salutary admonitions, but also some appropriate remedies or 
prescriptions of penances or good works, which serve to make 
publie reparation for the violation of law or for scandal. The 
salutary remedies, penances, and good works to be imposed on 
the delinquent must be milder and lighter than those which 
could and should have been inflicted by judicial sentence if the 
criminal trial had taken place (Canon 1952). The rebuke is 
considered to have been useless, if the offender refuses to accept 
the remedies, penances and good works imposed on him, or, after 
accepting the same, does not comply with them (Canon 1953). 

1863. If the rebuke has proved useless, the prosecutor may 
be ordered by the bishop (cfr. Canon 1954) to begin—or con- 
tinue, as the case may be—the criminal procedure. Canon 1949 
stated that the rebuke may be employed twice, but it supposes 
that the rebuke brought the desired results at least in so far as 
the offender made an effort and performed the imposed pen- 
ances. If thereafter, through weakness, he failed again in the 
same kind of offense, he may receive the judicial rebuke a second 


332 A PRACTICAL COMMENTARY 


time. If, however, an offender shows no good will, and refuses 
either to accept the penances imposed in the rebuke or to per- 
form them, criminal procedure may and ordinarily ought to— 
be instituted against him. 


CHAPTER IV 


OF THE CRIMINAL PROSECUTION AND THE SUMMONS OF THE 
OFFENDER 


1864. If the judicial rebuke be either insufficient to repair 
scandal and satisfy justice, or cannot be employed because the 
offender denies that he is guilty, or if the rebuke has been 
given but proved useless, the bishop or the judge of the Curia 
by special mandate of the bishop shall give orders that the acts 
of the investigation be submitted to the prosecutor (Canon 1954). 
The prosecutor shall at once draw up the bill of accusation, 
and present it to the judge in accordance with the rules of the 
First Section of Book IV (Canon 1955). | 

1865. In more serious offenses the Ordinary may, after con- 
sultation with the prosecutor, forbid the exercise of the sacred 
ministry or any other ecclesiastical office and the public recep- 
tion of Holy Communion (cfr. Canon 2222), if he believes that 
the accused would otherwise scandalize the faithful (Canon 
1956). If the judge believes that the accused might intimidate 
or bribe the witnesses, or hinder the course of justice in any 
other way, he may after consultation with the prosecutor de- 
mand by court order that the accused leave a certain town or 
parish for a time, or that he retire to a specified place and 
stay there under special surveillance (Canon 1957). 

These decrees of the Ordinary or of the judge cannot be 
issued unless the accused has been summoned and has appeared 
or refused to appear, and he must be summoned whether these 
provisional decrees are to be issued after his first appearance 
in court or summons, or later on in the course of the trial. 
Against these decrees no appeal or recourse is granted (Canon 
1958). 

With regard to the rest of the procedure in criminal cases, 
the rules stated in the First Section (On trials in general) of 
Book IV are to be followed. In the application of penalties 
the laws of Book V must be observed (Canon 1959), 


CANONS 1954-1959 339 


Because of the difficulty of enforcing the judgment, criminal 
actions are very rarely instituted in the ecclesiastical court, at 
least against lay persons, even where the offense is a purely 
ecclesiastical offense. In the first place, it would be difficult 
for an ecclesiastical court to place an offender under arrest, for 
the law of the United States does not permit private persons 
to restrain the liberty of its citizens, and before the law of 
the states the ecclesiastical authorities are merely private per- 
sons. Furthermore, if the ecclesiastical court condemns a per- 
son, it has no means of enforcing its sentence, except in so far 
as it can deny to the condemned persons those rights and privi- 
leges which they obtain by membership in the church. The 
secular courts view the relation of the members of a church 
towards the authorities of the church as a relation based on 
an implied contract or agreement to submit themselves to the 
rules and regulations of the chureh which they have joined. 
The United States Supreme Court said in the case of Watson 
v. Jones (80 U. S., 13 Wall.): ‘‘Whenever the questions of 
discipline, or of faith, or ecclesiastical rule, custom or law have 
been decided by the highest of these church judicatories to whieh 
the matter has been carried, the legal tribunals must accept such 
decisions as final, and as binding on them in their application 
to the case before them. . . . It is of the essence of these re- 
ligious unions and of their right to establish tribunals for the 
decision of questions arising among themselves, that those de- 
cisions should be binding in all cases of ecclesiastical cognizance, 
subject only to such appeals as the organism itself provides 
for.’’ Supreme Courts of various states and scholars in law have 
tried to ascertain the basis for the decision of the U. S. 
Supreme Court in the case of Watson v. Jones, for, under the 
law of the United States, the various churches are merely pri- 
vate organizations of private citizens, and, inasmuch as valuable 
rights of citizens are concerned in the actions against members 
of a church by the church tribunals, it is difficult to understand 
how the courts of the United States can refuse to review the 
decisions of the ecclesiastical courts in cases where valuable 
rights of a citizen are at stake (efr. Zollmann, ‘‘ American Civil 
Church Law,’’ 210). Some Supreme Courts of individual states 
have interpreted the decision of the United States Supreme 
Court in Watson v. Jones as applying only to questions of 


oo4 A PRACTICAL COMMENTARY 


church discipline, dogmatic and moral teaching, conduct of its 
members in harmony with that teaching, and discipline and 
expulsion of members, but, whenever property rights and other 
legal rights of citizens generally have been concerned in the 
cases before the ecclesiastical tribunals, the courts have not hesi- 
tated to review the decisions of the ecclesiastical courts brought 
to the civil courts by the aggrieved church members. 


TITLE XX 


OF MATRIMONIAL CASES 


CHAPTER I 


OF THE COMPETENT FORUM 


1866. Matrimonial cases between baptized persons belong by 
proper and exclusive right to the ecclesiastical judge (Canon 
1960). Since the matrimonial state is created by an agreement 
which between Christians is at the same time a Sacrament, the 
Chureh claims that the marriage of Christians, in so far as its 
validity and licitness is concerned, is withdrawn by the law of 
Christ from the jurisdiction of the civil authority. The State 
as a rule cares nothing for the sacramental character of the 
agreement by which the marital state is created, and claims 
and exercises jurisdiction over marriage, whether of Christians 
or the unbaptized. The conflict between the Church and the 
State is one of difference of religious principle and is unavoid- 
able, for the State has no right to demand that the Church 
change her religious principles, and the Church can neither 
change her principles nor persuade the civil governments to 
adopt her belief. 

Cases which concern the marriage of Christians are by the 
law of Christ committed to the exclusive jurisdiction of the 
authorities of the Church. Consequently, a Catholic who brings 
an action in the civil courts on any question concerning the 
marriage bond or the obligation inherent in the marital state 
without the permission of the competent ecclesiastical authority, 
offends not only against the law of the Church, but also against 
the law of Christ. The question arises whether a Catholic judge 
and a Catholic lawyer may try divorce cases in the civil courts, 


CANON 1960 339 


and whether a Catholic may sue for divorce to obtain the civil 
benefits of a divorce. 

In the first place, it is quite certain that a Catholic has a 
right to defend himself, and to employ a Catholic lawyer for 
the defence, if the other party institutes an action in the civil 
court concerning his marriage, for he has a right to protect his 
interests, no matter how they are attacked. In other eases, as 
we said in commenting on Canon 1131 (cfr. Vol. I, n. 1173), 
the Church has not given a general answer which would cover 
all questions of Catholics taking an active part in marriage cases 
before the civil tribunals. The Fathers of the Third Plenary 
Council of Baltimore (Acta et Decreta, n. 124) state that it is 
a most grievous sin for Catholics to petition a divorce from the 
civil magistrate, and consequently it would be wrong for an 
attorney to petition it for them. The proper course for Catholics 
who have a good and valid reason why their marriage may be 
dissolved by declaration of the ecclesiastical court or by dis- 
pensation of the Holy See, or who have a valid reason for 
separation, is to submit their case to the ecclesiastical authori- 
ties, and, after the Church has either dissolved the marriage 
bond, or declared the marriage null and void, or has granted a 
separation, the Church will also allow them to sue for divorce 
or separation, as the case may be, in the civil court to make 
effective-the rights which the Church has granted them in the 
ecclesiastical court. 

The question whether a Catholic judge or a Catholic lawyer 
may act in divorce and separation cases which have not first 
been submitted to the Church, is to be decided on the principles 
of cooperation in the sins of others. De Becker, who discusses 
the question thoroughly (De Sponsalibus et Matrimonio, 426- 
437), says that the authors are much divided on the fundamental 
principle at the bottom of this controversy—namely, whether 
the law of the state empowering the civil courts to grant di- 
vorces, limited (separation) or absolute (a vinculo), is intrinsic- 
ally evil or not. If it is, there can be no doubt that active 
cooperation in acting on that law is impossible without ecom- 
mitting sin. The same author states that there are equally good 
authorities on either side, and he is of the opinion that the 
difficulties and hardships caused to Catholic judges and lawyers 
in their official or professional career by refusing to act in 


336 A PRACTICAL COMMENTARY 


divorce cases is sufficiently grave to permit their codperation. 
No intelligent man who has the welfare of the public at heart, 
whether clergyman or layman, fails to see and deplores the harm 
that is wrought by the divorce laws, but it is nothing more than 
a pretended jurisdiction over the marriage of Christians arising 
from a misconception of the nature of marriage on the part of 
the civil legislators. They can at most legislate on the civil con- 
sequences of a marriage of Christians; its validity and licitness 
does not depend on their law, and the divorcees granted under 
the secular law cannot free the consciences of Christians from 
the observance of the law of Christ and His Church. They may 
at most declare that they will not prosecute a person for the 
violation of the duties incurred by marriage, if he separates 
from his spouse or attempts another marriage. . If then an at- 
torney asks for and a judge grants a divorce, the one can ask 
for and the other grant only so much as the civil authorities 
can concede; the decision of the court cannot affect the obliga- 
tions of conscience, nor are the civil legislators, as a rule, inter- 
ested in the obligations of conscience of a citizen. There does 
not seem to be anything intrinsically wrong in the divorce action 
of a judge or an attorney. 

1867. Cases concerning the mere civil consequences of mar- 
riage belong exclusively to the civil court, if they are brought 
to court as principal actions (efr. Canon 1016); but, if they 
are incidental or accessory to a case on the validity or licitness 
of marriage, the ecclesiastical judge is competent to try and 
decide these cases (Canon 1961). 

1868. Matrimonial cases of the supreme heads of states, of 
their sons and daughters, and of persons who have the immedi- 
ate right of succession as heads of states (efr. Canon 1557), 
shall be tried by that Sacred Congregation, or Tribunal, or 
special Committee which the Supreme Pontiff will delegate in 
each individual case. Cases of dispensation from uneonsum- 
mated valid marriage shall be tried by the Sacred Congregation 
of the Sacraments, and cases of the Pauline Privilege by the 
Sacred Congregation of the Holy Office (Canon 1962). Where- 
fore, no inferior judge can institute proceedings in cases of 
dispensation from valid unconsummated marriage, unless the 
Holy See has authorized him to proceed. If, however, a com- 
petent judge has by his own authority conducted a trial to 


CANONS 1961-1964 337 


establish nullity of marriage from the impediment of impotency 
(which the diocesan court is competent to judge except in cases 
of the heads of states, etc.), and in the course of the trial not 
impotency but non-consummation of the marriage was proved, 
he shall stop proceedings and forward all the acts of the case 
to the Sacred Congregation of the Sacraments, and the Sacred 
Congregation may use the proofs for the purpose of issuing 
sentence on the non-consummation of the marriage (Canon 
1963). 

1869. In other matrimonial cases the judge competent to try 
the case is the judge of the place in which the marriage was 
celebrated, or of the place in which the defendant—or, in the 
case of a Catholic and a non-Catholic, of the place in which 
the Catholic—has a domicile or a quasi-domicile (Canon 1964). 

Canon 247 states that the Holy Office has exclusive juris- 
diction as to the impediments of disparity of cult and mixed 
religion. Canon 1990 seems to modify the general rule of Canon 
247, in so far as it permits the Ordinary to declare the invalidity 
of a marriage which was rendered void through the impediment 
of disparity of cult, if the non-baptism of one party and the 
baptism of the other can be proved by authentic document. 

1870. In marriage cases where the aid of the Church is sought 
by a party to get a declaration of nullity of a previous mar- 
riage, the pastor or an assistant priest is approached by the 
party who desires to regain liberty in the eyes of the Church; 
usually a civil divorce has preceded. The priest who gets the 
facts of the case must ascertain the court which is competent 
to try the case. Canon 1964 states that the judge of the place 
where the marriage was contracted is competent. A declaration 
of the Committee for the Authentic Interpretation of the Code 
ruled that the judge of the place where a contract was concluded, 
or is to be executed, is competent only in case the defendant 
stays in the place of contract at the time the suit is brought.?8 
That declaration was issued to interpret Canon 1565, which 
deals with contracts generally, and it does not seem probable 
that Canon 1565 and its authoritative declaration refer to mar- 
riage, for, though marriage is a contract, it is a very special 
kind of a contract which does not come under the general rules 
of contract, but has its own special and detailed regulations 


28 July 14, 1922 (Acta Ap. Sedis, XIV, 528), 


338 A PRACTICAL COMMENTARY 


appropriate to its singular character. The diocesan court of the 
place of marriage seems therefore competent to try the case, 
though the defendant is not staying in that diocese. 

If the party who brings the suit does not wish to approach 
the judge of the place where the marriage was contracted, he 
is at liberty to go to another competent judge. Who else 1s 
competent? If both parties are Catholics, the case must be 
presented to the judge of the diocese where the defendant has 
a domicile or quasi-domicile. The party who approaches the 
priest to ask him to take up the case for him (or her), is the 
plaintiff, and the other party is the defendant. If the defendant 
has a domicile or quasi-domicile in another diocese, the case 
must be taken to the court of that diocese, for the plaintiff must 
go to the court of the defendant. If one party is Catholic and 
the other non-Catholic, the case must go to the court of the 
diocese where the Catholic party has a domicile or quasi-domicile. 
Usually the Catholic party approaches the priest about the mar- 
riage case, and, if that party has a domicile or a quasi-domicile 
in the diocese where he (she) approaches the priest, the case 
can go to the court of that diocese. If a married woman has 
not been separated legitimately from her husband, she cannot 
have a domicile of her own, but she can have a quasi-domicile, 
which, if her husband is a non-Catholic, entitles her to bring 
the suit in that place. 

1871. When both parties are Catholics, a difficulty arises to 
determine the competent court if the man has abandoned the 
woman and gone to a distant place. Must she follow the de- 
fendant into the court where he has his domicile or quasi- 
domicile? The inconvenience is considerable, and, if the place 
where the marriage was contracted is also far distant, it 1s a 
question of practical importance to determine whether in that 
case the woman is excused from going to the court of the place 
where her husband now resides. If the man is deserted by the 
wife, the case is not difficult, for, since the wife keeps the domi- 
cile of her husband, he can bring suit in the diocese where he 
lives. Can the wife do the same when she is maliciously deserted 
of her husband? The Committee for the Authentic Interpreta- 
tion of the Code has declared that a wife, who is maliciously 
deserted by her husband, cannot bring suit in the place of her 
own quasi-domicile, but must follow the husband’s domicile or 


CANONS 1965-1966 339 


quasi-domicile to bring suit there. The same Committee decided 
that a Catholic wife who is not legitimately separated (see 
Canons 1129-1131 on separation) from her non-Catholic hus- 
band, may sue him either in the court of her quasi-domicile or 
in the court of her husband’s domicile, because she participates 
in the domicile of her husband.2® This latter declaration is a 
logical application of the principle that a wife who has not been 
legitimately separated from her husband necessarily retains the 
domicile of her husband, and, he being a non-Catholic, Canon 
1964 rules that the domicile or the quasi-domicile of the Catholic 
party is the competent court. Now the wife in the case has 
both the necessary domicile of her husband, and she has a quasi- 
domicile of her own; wherefore, either place is competent to try 
the case. 

1872. If a marriage is attacked because of lack of consent, 
the judge should first of all try by timely admonitions to induce 
the party whose consent is said to have been wanting to renew 
the consent. If the marriage is attacked because of the lack 
of the necessary form of marriage (i.e., because it was not con- 
tracted before an authorized priest and two witnesses), or be- 
cause of a diriment impediment from which a dispensation can 
be and is usually given, the judge should endeavor to induce the 
parties to contract marriage in the legitimate form, or to ask 
for a dispensation from the impediment (Canon 1965). 


CHAPTER II 
OF THE CONSTITUTION OF THE TRIBUNAL 


1873. In the regular trial of marriage cases which involve 
the bond of marriage three judges must adjudicate (cfr. Canon 
1576). Canon 1990 specifies the cases in which the local Ordi- 
nary alone can declare the nullity of a marriage. In the process 
instituted for the purpose of proving the non-consummation of 
a Christian marriage and thus obtaining a dispensation from 
the marriage bond, one judge only is to take the evidence, and 
that Judge cannot act in the case unless he is delegated by the 
Holy See (cfr. Canon 1963); if in a ease of impotency that 
impediment is not proved, but the proofs indicate non-consum- 
mation of the marriage, the judge must refer the case to the 
Sacred Congregation of the Sacraments (Canon 1966). 

29 July 14, 1922 (Acta Ap. Sedis, XIV, 529). 


340 A PRACTICAL COMMENTARY 


1874. In all cases which deal with the nullity of marriage, 
or with the proof of non-consummation of a marriage and the 
reasons for dispensation from the bond of a valid non-consum- 
mated marriage, the defensor vincult (cfr. Canon 1586) must 
be summoned (Canon 1967). 

The duties of the defensor vincult in marriage cases are as 
follows: 

(1) he must be present at the examination of the parties 
and of the witnesses and experts. He must present to the judge 
the interrogatory (or questions) in a closed and sealed envelope, 
and the judge may open the envelope only in the very course 
of the examination of the parties and witnesses, and must then 
and there propose the questions to them. He must suggest to 
the judge new questions which arise in the examination ; 

(2) he must study the articles or points proposed by the 
parties, and if necessary contradict them, and he must examine 
the documents exhibited by the parties; 

(3) he must make a written defence against the nullity of 
the marriage claimed by the parties, and try to prove the valid- 
ity or the consummation of the marriage, and present everything 
that he thinks useful for the purpose of upholding the marriage 
which is attacked (Canon 1968). 

1875. The defensor vinculi has the right: 

(1) always and at any stage of the trial to inspect the acts 
of the case, even though they have not yet been published; to | 
ask for more time to complete his written defence or other writ- 
ings in defence of the validity of the marriage, which time is 
to be granted to him at the prudent discretion of the judge; 

(2) to be informed of all the proofs and allegations in such 
a manner that he has an opportunity to prepare his objections; 

(3) to request that other witnesses be summoned or that the 
same be again subjected to an examination, though the taking of 
evidence has been completed and the evidence published, and to 
submit new evidence and objections; 

(4) to demand that other acts which he suggests may be 
drafted, unless the tribunal by unanimous vote decides against 
him (Canon 1969). The defensor vinculi enters into all trials 
of marriage cases which deal with the validity of marriage, not 
only in the cases which are to be discussed in the form of a 
complete and formal trial, but also in the cases enumerated in 


CANONS 1967-1969 341 


Canon 1990, in which the Ordinary ean issue the declaration 
of nullity without a formal trial. The only case in which he 
does not enter is where a Catholie contracted marriage outside 
the Church, which case will be spoken of under Canon 1990. 
The outline of the precedure in matrimonial cases in the 
Code does not enter into all the details of the required formali- 
ties, because many of them are already supposed to be known 
from the general laws on ecclesiastical trials (e.g., that in all 
court proceedings a notary must be present who acts as clerk 
of the court, that the witnesses must be sworn before the taking 
of testimony, that the parties may be represented by proxies 
and attorneys, that the precepts of the Code on proxies and 
attorneys apply also in marriage cases, etc.). However, the 
Church in trials on annulment of marriage wants above all the 
truth of the facts in the ease, and, though the formalities of 
court procedure are ordained for the purpose of furthering the 
ascertainment of truth and preventing fraud, still the ecclesi- 
astical procedure in marriage cases permits the violation of cer- 
tain rules of the ordinary procedure of trials in order to obtain 
greater certainty of the truth of the facts. This is apparent 
from the extensive powers which the Code confers upon the 
defensor vinculi (efr. Canons 1968-1969), and which are far 
beyond the rights of either plaintiff or defendant in ordinary 
trials. The position of the defensor vinculi is neither that of 
plaintiff nor defendant, but his position is altogether singular: 
he fights to uphold the validity of the marriage, irrespective of 
plaintiff or defendant, by trying to show the deficiency of the 
proofs put in evidence for the nullity of the marriage and by 
proofs for its validity through witnesses and all other available 
means. Another indicaticn that the Church is more anxious 
for the ascertainment of the truth in marriage cases than for 
the observance of the ordinary formalities of trials, is the fact 
that blood-relations and relations by marriage are admitted as 
witnesses (cfr. Canon 1974), and that the cases on the validity 
of marriage never become irrevocably adjudged, but may be 
reopened whenever new and weighty proofs are discovered. 


342 A PRACTICAL COMMENTARY 


CHAPTER III 


OF THE RIGHT TO ATTACK MARRIAGE AND PETITION FOR A 
DISPENSATION FROM UNCONSUMMATED MARRIAGE 


1876. The collegiate tribunal cannot try or decide any mar- 
riage case, unless a regular accusation or legitimately made peti- 
tion has preceded (Canon 1970). The following persons are 
capable of attacking a marriage: (1) the married parties in all 
cases of separation and of nullity, unless they themselves were 
the cause of the impediment; (2) the prosecutor in impediments 
public of their very nature. All other persons, even blood-rela- 
tions, have no right to attack a marriage; they can merely de- 
nounce the invalidity of a marriage to the Ordinary or to the 
prosecutor (Canon 1971). 

The Code speaks of a collegiate tribunal, for cases concerning 
the invalidity of marriage cannot be tried otherwise than by a 
collegiate tribunal of at least three judges (cfr. Canon 1576), 
with the exception of the cases specified in Canon 1990. If the 
parties have, through fraud or other gravely culpable act, caused 
the invalidity of their marriage, they have no right to become 
plaintiffs in the case against their marriage; the same applies 
to other matrimonial cases (e.g., separation for adultery, cruelty, 
ete.). What is to be done if both parties knew before the mar- 
riage of an invalidating impediment, but concealed it from the 
priest and married, and afterwards do not want to rectify the 
marriage? May they at least denounce their marriage to the 
prosecutor under the general provision that all persons who 
know of the invalidity of a marriage may denounce it to the 
prosecutor? It seems that they may do so. It is not certain 
what is meant by the words of the Code that the parties cannot 
be plaintiffs against the marriage, if they were the causa impedi- 
menti. It seems reasonable that they be excluded from acting 
as plaintiffs, if they by their own fault caused the invalidity of 
the marriage; but whether that is meant by the causa wmpeci- 
menti, or reference is made only to cases where the partie: 
created the impediment (e.g., by force and fear), is not certain.*° 

1877. Canon 1971 states that, in the case of impediments 
public of their very nature (natura sua publica), the prosecutor 


30 Noval, ‘‘De Processibus,’’ n. 850; Augustine, ‘‘Commentary,’’ V, 
417; Wernz-Vidal, ‘‘Jus Canonicum,’’ V, n. 698 


CANONS 1970-1974 343 


can in virtue of his office attack the marriage. What impedi- 
ments are public of their nature? Vermeersch-Creusen defines 
them as ‘‘impediments which are based on a fact which of its 
nature can be proved in court, because as a rule witnesses or 
documents are not wanting, and which is not of itself a de- 
faming impediment.’’ *1 Noval would add impediments occult 
of their nature (e.g., impotency, force and fear), if they had 
actually become known te others so that they could be proved 
in court.** Wernz-Vidal explains impediments to be public of 
their nature if they arise: (1) out of a faet which must take 
place publicly (e.g., ordination, religious profession) ; (2) facts 
of which there is public record (e.g., age, consanguinity, etc.) ; 
(3) facts which can be proved by the testimony of a qualified 
witness (e.g., the impediment of ligamen by the testimony of 
the priest who witnessed the marriage) .*° 

1878. A marriage which has not been attacked during the 
lifetime of both parties, is after the death of one or both pre- 
sumed to have been valid, and no proof against this assumption 
is admitted except when this question arises incidentally—for 
example, in connexion with rights of inheritance or the care and 
maintenance of children (Canon 1972). 

1879. The married parties alone have the right to ask for a 
dispensation from unconsummated valid marriage (Canon 1973). 


CHAPTER IV 
OF PROOFS 
ARTICLE I—OF WITNESSES 


1880. Although blood-relations and relations by marriage in 
every degree of the direct line and in the first degree of the 
collateral line are generally declared incapable of being wit- 
nesses (cfr. Canon 1757), they are permitted to testify in mar- 
riage cases (Canon 1974). This exception in favor of matri- 
monial cases is probably based on the fact that they are better 
acquainted with the facts concerning the case, and that fre- 
quently no other witnesses would be available, if the relations 
were excluded from testifying. For the rest, the ecclesiastical 
judge must weigh all depositions of witnesses and determine 

31 ‘“Hipitome,’’ ITI, n. 286. 


32 **¢ De Processibus,’’ n. 850. 
33 “* Jus Canonicum,’’ V, n. 147. 


344 A PRACTICAL COMMENTARY 


from the cireumstances whether their testimony is prompted by 
selfish motives, or is for any other reasons untrustworthy. 

1881. In eases of impotency or of non-consummation of mar- 
riage, unless the impotency or non-consummation is proved with 
certainty from other sources, each of the married parties must 
present the witnesses known as the tesies septume manus. They 
are to be taken from the blood-relations or relations by marriage, 
or if such cannot be had, from neighbors of good repute, or 
others who are well acquainted with the parties, and who can 
testify to the probity of the parties and especially to their 
veracity concerning the matter in controversy. The judge can 
also ex officio call additional witnesses, because the public welfare 
(cfr. Canon 1759) is concerned in the matrimonial status of the - 
parties. The testimony of the septima manus is a proot of 
credibility which gives additional strength to the depositions of 
the parties; it has not the force of full proof, unless it 1s sup- 
ported by other circumstantial evidence (Canon 1975). 

These witnesses were called septime manus, because accord- 
ing to the law of the Decretals they had to be seven in number.** 
Avanzini remarks that the Sacred Congregation does not insist 
on the precise number of seven witnesses,®° and the Code does 
not specify the number of these auxiliary witnesses. As they 
do not testify about the facts of the case but rather about the 
character of the parties, the Code states that they do not fully 
prove the case. The Holy Office declared that the testamonium 
septime manus is not required in all marriage cases, but only 
in those which concern the non-consummation of marriage.*° 

1882. As the Code does not give any special rules with regard 
to proofs by witnesses or documents in marriage cases, the gen- 
eral rules on evidence apply. The priest to whom a party first 
relates his case with the request that it be submitted to the 
bishop, usually has to assist the party in procuring the evidence. 
The diocesan court first of all determines whether it is, accord- 
ing to the rules of law, competent in the case; it then summons 
the defendant, or, if he refuses to answer the summons, declares 
him in contempt of court. The names of the witnesses and 
their addresses are to be given to the court, which then summons 


34 Decretal. Greg. IX, ec. 5 and 7, De Frigidis et Mal., lib. V, tit. 15. 
35 Acta S. Sedis, VI, 515. . 
36 February 16, 1894; Gasparri, ‘‘De Matrimonio,’’ Il, n. 1486. 


CANONS 1975-1979 845 


them. An affidavit made by a witness as to some fact in the 
ease does not suffice, for a witness must testify in person, and, 
if he cannot without great difficulty come to court, the judge 
may appoint a priest to take the testimony (cfr. Canon 1770). 
Though the Code does not state anything on the point, it may 
be deduced from general principles that the court may appoint 
a priest to take the testimony of non-Catholic witnesses who 
refuse to appear in court. As the marriage cases which deal 
with the marriage bond are not merely private affairs, but con- 
cern the public welfare, the judge must use all available means 
to ascertain the truth. In cases which concern private interests 
only, the parties have to procure the evidence in their favor, the 
court as such being not interested, but, in affairs which are of 
vital interest to the public welfare, the court is actively. inter- 
ested. 


ARTICLE II—OF BODILY INSPECTION 


1883. In eases of impotency or non-consummation of mar- 
riage, the bodily inspection of both or of one of the parties, as 
the case may be, must be instituted by means of experts, unless 
it is apparent from the circumstances that the inspection is 
useless (Canon 1976). In the choice of the experts the precepts 
of Canons 1792-1805 are to be observed, besides the rules laid 
down in the following Canons (Canon 1977). 

1884. Persons who have privately inspected the married 
parties in reference to the fact on which the petition for the 
declaration of the nullity or the non-consummation of the mar- 
riage is based, are not to be admitted as experts; they may, 
however, be introduced as witnesses (Canon 1978). 

1885. For the inspection of the man, two experienced physi- 
cians must be appointed ex officio (i.e., not by the parties, but 
by the court at its own choice). For the inspection of the woman 
two midwives who have legitimate testimonials of knowledge are 
to be appointed ex officio, unless the woman prefers to be exam- 
ined by two physicians to be appointed ez officio, or the Ordinary 
believes it necessary to employ the physicians. The inspection 
of the woman must be performed according to the rules of 
Christian modesty and in the presence of a respectable matron 
to be appointed ex officio (Canon 1979). 

1886. The inspection of the woman by the midwives or ex- 


346 A PRACTICAL COMMENTARY 


perts is to be performed by each one separately; each physician 
or midwife shall make a separate report of the examination 
within the time fixed by the judge. The judge may, if he deems 
it advisable, submit the reports of the midwives to the examina- 
tion of a skilled physician (Canon 1980). After the report 
has been made, the judge shall question the experts, midwives 
and matron according to the questions prepared by the defensor 
vincult, which they must answer under oath (Canon 1981). 

1887. In eases of lack of consent for reason of insanity, the 
opinion of experts is also required. These shall, if the case 
demands it, examine the insane person and the actions which 
arouse suspicion of insanity according to the rules of science. 
Moreover, the experts who formerly visited the patient must be 
heard as witnesses (Canon 1982). 


CHAPTER V 


OF THE PUBLICATION OF THE PROCESS, CLOSING OF THE 
EVIDENCE, AND SENTENCE 


1888. After the publication of the process the parties may 
yet present new witnesses on the various points of the case, 
provided the precepts of Canon 1786 are observed. If, however, 
witnesses who have already been examined are to be questioned 
again on the same points on which they were previously exam- 
ied, precautions must be taken against collusion and bribery 
(cfr. Canon 1781), and the defensor vinculi has the right to 
raise proper objections (Canon 1983). 

1889. The defensor vincula has the right to be heard last in 
the written and oral defence, in the proofs as well as in the 
petitions and the answer to the arguments. Wherefore, the 
tribunal shall not render a final sentence before the defensor 
vincult has been asked and has declared that he has nothing 
further to propose or to investigate. If the defensor vinculi 
has proposed nothing to the court before the final day fixed by 
the judge for that purpose, it is presumed that he has nothing 
further to lay before the court (Canon 1984). 

1890. In cases which are to establish the non-consummation 
of a valid marriage for the purpose of obtaining a dispensation 
from the bond of marriage, the judge who has been delegated 
by the Holy See to conduct the investigation shall neither pub- 


CANONS 1980-1989 347 


lish the process nor pronounce sentence (cfr. 1963) on the non- 
consummation of the marriage or the reasons for the dispen- 
sation, but he shall forward all the acts of the case together 
with the written opinion of the bishop and of the defensor vinculi 
to the Apostolic See (Canon 1985). 


CHAPTER VI 


OF APPEALS 


1891. The defensor vinculi must within the legitimate term 
appeal to the superior court from a first sentence which declared 
the nullity of a marriage; if he neglects his duty, he shall be 
forced to do so by the authority of the judge (Canon 1986). 

1892. After a second sentence which has confirmed the first 
sentence of nullity and from which the defensor vincult of the 
court of appeal conscientiously believes no appeal should be 
made, the parties have the right to contract a new marriage as 
soon as ten days (cfr. Canon 1877) have elapsed after the 
declaration of the sentence (Canon 1987). 

1893. The local Ordinary has the duty to see that an anno- 
tation regarding the declaration of nullity is made in the bap- 
tismal and matrimonial records where the marriage was recorded 
(Canon 1988). 3 

1894. Since the sentences in matrimonial cases never become 
irrevocably adjudged (res judicata), the cases may be reopened 
at any time when new arguments are at hand, but Canon 1903 
warns the judge not to reopen a case in which two uniforin 
decisions had been given by the courts unless new and weighty 
arguments are offered (Canon 1989). 


CHAPTER VII 


OF THE CASES EXCEPTED FROM THE FORMALITIES OF AN 
ORDINARY TRIAL 


1895. If an impediment of disparity of cult, orders, solemn 
vow of chastity, valid marriage bond, consanguinity, affinity, 
or spiritual relationship rendered a marriage invalid, and the 
existence of the impediment can be proved from a certain and 
authentic document which cannot be contradicted or objected 
to, and there is the same certainty that no dispensation from 


348 A PRACTICAL COMMENTARY 


these impediments was granted, the above-mentioned formalities 
of a trial need not be observed. After consultation with the 
defensor vincula and the summoning of the parties, the Ordinary 
may declare the nullity of the marriage (Canon 1990). 

1896. As to a marriage made invalid because of the non- 
observance of the canonical form of marriage, the Committee 
for the Authentic Interpretation of the Code has declared as 
follows: (1) if after the promulgation of the ‘‘Ne Temere,’’ or 
in places subject to the Tridentine Law of the Constitution 
‘‘Tametsi,’? two Catholics (2) or, if under the same cir- 
cumstances a Catholic and a non-Catholic contracted marriage 
either before an heretical minister or before the civil magistrate, 
(3) or, if two apostates from the Catholie faith married each 
other either before a non-Catholic minister of religion or before 
a civil magistrate, and the Catholic party after having obtained 
a civil divorce returns penitently to the Church and wishes to 
contract marriage with a Catholic before the Church, no matri- 
monial trial is necessary nor the intervention of the defensor 
vinculi, but the case may be decided by the Ordinary or by the 
pastor after consultation with the Ordinary, provided the facts 
are ascertained by careful investigation.®” 

1897. In the cases mentioned in Canon 1990 the proof of the 
impediment must be furnished by a document which is beyond 
suspicion both as to its authenticity and veracity. There is little 
difficulty, as a rule, in proving the reception of sacred orders, 
solemn religious profession, an existing marriage, consanguinity, 
affinity, and spiritual relationship, for these facts are ordinarily 
provable from puble records. The impediment of disparity of 
cult creates some difficulty, for, while the baptism of one party 
ean as a rule be proved from the public records (unless, through 
carelessness of the minister, no record was made or through 
accident the record has been destroyed), it is difficult to under- 
stand how the non-baptism of the other party can be proved 
by document. Wherefore, Vlaming justly remarks that only 
positive facts can be proved by records or documents, while a 
negative fact (viz., non-reception of baptism) has to be proved 
by other proofs and legitimate presumptions.*® 

1898. If marriage was contracted before a priest who had 


37 October 16, 1919 (Acta Ap. Sedis, XI, 479). 
38 ‘“ Prelect. Jur. Matr.,’’ IT, n. 803. 


CANONS 1990-1992 349 


no authorization to witness marriages in the parish where the 
marriage took place, neither the Code nor the above-cited declara- 
tion of the Committee excepts the case from the ordinary form 
of matrimonial trials. Nevertheless, the invalidity is apparent 
as soon as it is proved that the priest was not an authorized 
witness of the marriage, and further trial seems superfluous. 
Wherefore, some commentators *® hold that the case should be 
treated like the cases excepted from the form of ordinary trials. 
In cases where the lack of authorization is very evident, the 
priest’s interference is actually no more than the attempt of a 
civil magistrate to witness the marriage of a Catholic; where 
the case is complicated and depends on various circumstances 
(e.g., whether the priest was legitimately appointed as pastor, 
whether he is legitimately taking the place of the pastor in 
the latter’s absence, illness, ete.), an ordinary trial should be 
instituted. | 


APPEAL FROM THE DECLARATION OF NULLITY 


1899. In the excepted cases (cfr. Canon 1990), the bishop 
may declare the nullity of the marriage in summary proceed- 
ings, but, if the defensor vincult has good reasons to maintain 
that there is no certainty about the impediments, or that prob- 
ably a dispensation from them has been obtained, he is obliged 
to appeal to the judge of the court of the second instance to 
whom the acts of the case must be forwarded, and who is to 
be reminded by written notice that the case in question is ex- 
empted from the formalities of an ordinary trial (Canon 1991). 

1900. The judge of the second instance shall decide the case 
without being obliged to call anyone else than the defensor 
vinculi into the case. His duty is either to confirm the sentence 
of the first Ordinary or to order that the case be tried in the 
form of an ordinary matrimonial trial, in which event he shall 
remand the case to the court of the first instance (Canon 1992). 


89 Wernz-Vidal, ‘‘Jus Matrimoniale,’’ V, n. 705; Vlaming, ‘‘Preelect. 
Jur. Matr.,’’ II, n. 804. 


350 A PRACTICAL COMMENTARY 


TITLE XXT 


OF CASES AGAINST SACRED ORDINATION 


1901. In eases in which the obligations contracted by sacred 
ordination or the validity itself of the sacred ordination is at- 
tacked, the bill of complaint must be submitted to the Sacred 
Congregation of the Sacraments; or, if the ordination is attacked 
on account of a substantial defect in the sacred rite, to the 
Sacred Congregation of the Holy Office. The Sacred Congrega- 
tion (of the Sacraments or of the Holy Office) shall decide 
whether the ease is to be discussed in the form of an ordinary 
trial or in an informal manner—the so-called via disctplinaris. 
If the Sacred Congregation decides on a formal trial, it shall 
remand the case to the tribunal of the diocese which was the 
proper diocese of the cleric at the time of the ordination in 
question, except in the case in which the orders are attacked on 
account of a substantial defect in the sacred rite, in which event 
the case is to be remanded to the tribunal of the diocese in which 
the ordination took place. The appeal in the case is governed 
by Canons 1594-1601. If the Sacred Congregation decides to 
discuss the ease in the disciplinary way, it orders the competent 
tribunal of the diocese to institute the process for the informa- 
tion of the Sacred Congregation, and, after this has been sub- 
mitted, it renders the decision (Canon 1993). 

1902. The right to attack the validity of sacred ordination 
rests equally with the cleric and the Ordinary to whom the cleric 
is subject, or in whose diocese he was ordained. If a cleric 
believes that he has not contracted the obligations annexed to 
sacred orders (e.g., because he was constrained by grave fear 
to receive sacred orders, cfr. Canon 214), the cleric alone can 
petition the Holy See for a declaration of the nullity of the 
obligations (Canon 1994). 

1903. All things which are to be observed in ecclesiastical 
trials, as outlined in the First Section of Part I, Book IV, and 
the special regulations laid down in the process of matrimonial 
cases, are with due adaptation (congrua congruis referendo) to 
be applied to cases against sacred ordination (Canon 1995). 
The defensor vinculi sacrew ordinationis enjoys the same rights 


CANONS 1993-1998 351 


and has the same duties as the defensor vinculi matrimoniti 
(Canon 1996). 

1904. Though an action was instituted merely for the purpose 
of being freed from the obligations arising from sacred orders, 
not against the validity of the ordination, the cleric is never- 
theless to be forbidden ad cautelam to exercise the sacred orders 
(Canon 1997). 

1905. In order that a clerie may be freed from the obliga- 
tions which are attached to sacred orders, two uniform sentences 
are required. The appeal in these cases is governed by Canons 
1986-1989 on appeal in matrimonial cases (Canon 1998). 

Canon 1993 states that cases concerning the validity or the 
freedom from the obligations of sacred orders are reserved to 
the Holy See. The Holy See decides first whether the ease is 
to be tried according to regular court procedure or in the so- 
called disciplinary form. If ordinary court procedure is to be 
instituted, the Holy See remands the case to the respective 
diocesan court. In cases which attack the validity of sacred 
orders, there must be a collegiate tribunal of at least three judges 
(cfr, Canon 1576). If the first sentence decrees the nullity of 
the ordination or the freedom from the obligations attached to 
sacred orders, the defensor vincult sacre ordinationis must ap- 
peal to the superior court—usually the archbishop’s court, but, 
if the trial in the first instance was held in the arehbishop’s 
court, that diocesan court which the archbishop has once for all 
chosen as a court of appeal. 


PART TWO 


OF CAUSES OF THE BEATIFICATION OF SER- 
VANTS OF GOD AND THE CANONIZATION OF 
THE BEATIFIED 


1906. Causes of beatification of servants of God and the 
canonization of the beatified are reserved exclusively to the judg- 
ment of the Holy See. In accordance with Canon 253, the 
Congregation of Sacred Rites alone is competent in these cases. 
The local Ordinaries by their own right can do those things 
only which are explicitly committed to them in the following 
Canons (Canon 1999) . 

These causes can proceed in two ways namely: either by 
the ordinary way of non-cult (wherein no public cult or vener- 
ation is claimed), or by the extraordinary way of the excep- 
tional case or cult. If the cause proceeds in the ordinary way, 
it must be proved before the discussion on the virtues of a 
servant of God that no public cult was given to him, or, if 
given by an abuse (ie., without authorization of the ecclesi- 
astical authorities), was stopped. If the cause proceeds in the 
extraordinary way, one endeavors to prove that a servant of 
God is in possession of public and ecclesiastical cult (Canon 
2000). 

The causes of martyrs, whether conducted in the ordinary or 
extraordinary way, must not be presented jointly, but each 
cause must proceed separately, unless the martyrs suffered in 
the same persecution and in the same place. The entire process 
and all discussions which are prescribed in these cases from the 
introduction of the cause to its termination shall deal with each 
martyr individually (Canon 2001). 

In the Canons which follow, the term ‘‘Ordinaries’’ does 
not include the vicar-general, unless he has a special mandate 
(Canon 2002). 

1Codex pro Postulatoribus (3rd ed.), Cura Postulationis O.F.M. 

352 


CANONS 1999-2002 303 


The veneration of saintly men and women by the Church 
began with the martyrs of the faith. The Catholic people were 
convinced that those who had sacrificed their lives for Christ 
were glorified by God and crowned with the crown of honor 
and power becoming the faithful children of God. <A peculiar 
feature of the early veneration of the martyrs is that it was 
not universal throughout the Church, but confined to the diocese 
or ecclesiastical province where the martyrs had made their 
supreme sacrifice. The Blessed Mother of Christ and the Holy 
Apostles were, however, venerated universally because of the 
prominent role they held in the Church. After the cessation 
of the hostilities of the Roman Empire against the Church, the 
practice developed of honoring publicly in church the memory 
of Christian men and women who had become renowned for 
exceptional sanctity of life and zeal for the honor of God. They 
were called “‘Confessors.’’ St. Martin, Bishop of Tours (died 
397), was soon after his death honored as a saint. In Rome 
Pope Symmachus (498-514) built a church in honor of St. 
Silvester and St. Martin, both Confessors. The veneration of 
the saintly confessors remained mostly local, just as the cult 
of the holy martyrs, though at Rome as well as at other churches 
saints from other dioceses and countries were gradually inserted 
in the liturgical books. The Roman Calendar of saints was in the 
course of time adopted by many dioceses and countries and the 
rapid spread of the Franciscan Order over all Europe in the 
thirteenth century was instrumental in introducing the Roman 
liturgy into many places, since that Order used the liturgical 
books of the Roman liturgy. 

The canonization of saintly persons by the supreme authority 
of the Church in the formal manner in which it was done later 
on, was not in vogue in the early history of the Church. Never- 
theless, the individual bishops and the provincial councils con- 
trolied the public religious worship, and without their authority 
no person could be honored as a saint in the sacred liturgy. 
The first instance of an official canonization by the Supreme 
Pontiff is that of St. Ulrich, Bishop of Augsburg, by Pope John 
XV, in a Roman Synod in 993. Canonization, however, was 
not reserved to the Holy See until Pope Alexander III, in the 
year 1171, forbade honoring with ecclesiastical cult any person 
without the sanction of the Holy See. Pope Urban VIII, by 


354 A PRACTICAL COMMENTARY 


decree of the Sacred Congregation of Rites, March 12, 1631 
(Collectanea de Prop. Fide, I, n. 67) forbade the bishops and 
all other authorities inferior to the Supreme Pontiff to allow 
the public veneration of any deceased person, and to take any 
official action in the matter of investigating the lives of persons 
reputed to have been exceptionally virtuous or of approving the 
cult rendered to them by spontaneous demonstrations of the 
people, without first submitting the matter to the Apostolic See 
to which alone the pronouncement of beatification or canoni- 
zation is reserved. The Constitution ‘‘Cclestis Hierusalem”’ of 
Pope Urban VIII, July 5, 1634 (Gasparri, Fontes Cod. Jur. 
Can., I, 402) repeated the same precepts as the above decree 
of the Sacred Congregation of Rites and, among other points, 
decreed that when people make votive offerings to a church in 
the form of tablets, picture, ete., claiming that they have ob- 
tained a favor through the invocation of a servant of God who 
has not yet been placed in the catalogue of saints or blessed by 
the Church, the rector of the church where the offering is made 
should accept it and take down the testimony of the donor 
and others concerning the fact which is claimed to be miracu- 
lous and then report the matter to the local Ordinary, and if 
he approves of it, the tablet or other offering together with the 
testimony is to be preserved in a secure place outside the church 
so that they may be examined in a future cause of beatification 
or canonization, if it please God that such step be taken 
later on. 

The Code of Canon Law confirms the former law, stating 
expressly in Canon 1999 that the causes of beatification and 
canonization are reserved exclusively to the Apostolic See. The 
Code distinguishes between the ordinary process of beatification 
and the extraordinary process. In the first, the holiness of life 
or the fact of martyrdom and the miracles wrought at the invo- 
cation of a servant of God are the principal points to be proved. 
It must also be proved that no public cult has been bestowed 
on the servant of God) ie., no cult has been approved by the 
bishop), and that public veneration started by the people has 
been stopped by the bishop. The extraordinary process of beati- 
fication can take place only with regard to servants of God whose 
publie veneration had been practised for a hundred years or 
more prior to the issuance of the Constitution of Pope Urban 


CANON 2002 355 


VIII (July 5, 1634) and after the pontificate of Pope Alexander 
III, 1181 (efr. Canon 2125). 

The ordinary process of beatification is divided into a pre- 
liminary or preparatory process and the final process (also called 
Apostolic process). The Code gives authority to the local Ordi- 
naries to institute the preliminary process which comprises: (1) 
the gathering of the writings of the servant of God ; (2) testi- 
mony of the reputation for holiness of life, of his virtues gen- 
erally, of the fact of martyrdom, of miracles claimed to have 
been wrought at his invocation; (3) testimony that no public 
cult has been bestowed on the servant of God by permission of 
the bishop, and that spontaneous public veneration by the people 
has been suppressed by the bishop. The acts of the preliminary 
process must be forwarded to the Sacred Congregation of Rites 
which has to review each of the three acts of the process sepa- 
rately. After this, the Sacred Congregation decides in an ordi- 
nary and full meeting whether the cause is to be recommended 
to the Supreme Pontiff for the institution of the Apostolic proc- 
ess. If they decide to recommend the case to the Holy Father, 
and he approves of it, he issues the lttere remissoriales by which 
five judges in the diocese from which the case was submitted 
are appointed with authority to institute the Apostolic process. 

The delegated judges who conduct the Apostolic process must 
establish: (1) the reputation concerning holiness of life, miracles 
or martyrdom; (2) the fact of the practice in a heroic degree of 
the virtues, the fact of each miracle alleged in the preliminary 
process, and, in case of martyrs, the fact of martyrdom and its 
cause. The acts of the process are forwarded to the Sacred Congre- 
gation which examines the validity of the acts and with previous 
permission obtained from the Supreme Pontiff renders a decision 
on the validity of the Apostolic process. Following this deci- 
sion, the evidence of the virtues, or the martyrdom and its cause, 
and the evidence on the miracles are submitted to scrutiny three 
times by three different committees of the Sacred Congregation: 
(1) the congregatio antepreparatoria, (2) the congregatio pre- 
paratoria, (3) the congregatio generalis. If the first, 1.e., the 
proofs of the virtues or the martyrdom, has successfully passed 
the three stages, a decree is issued that the heroic degree of the 
virtues or the martyrdom has been proved. After this decree, 
the proof of the miracles has to go through the three committees, 


356 A PRACTICAL COMMENTARY 


and, if they are found to be true miracles, a decree or decision 
to that effect is issued. Then the discussion in presence of the 
Supreme Pontiff follows on the question whether one may safely 
proceed to the beatification of the servant of God. The Holy 
Father alone decides this question after having heard the opinion 
of the Consultors and Cardinals of the Sacred Congregation of 
Rites. Finally, the decree of beatification is issued by the Su- 
preme Pontiff. 


TITLE XXII 


OF SOME PERSONS WHO TAKE PART IN THESE 
PROCESSES 


CHAPTER I 


OF THE ACTOR AND POSTULATOR 


1907. Any individual member, or any legitimate body of the 
faithful, has the right to petition that a cause be taken up by 
the competent tribunal. If the petition is admitted by the legiti- 
mate and competent authority of the Church, the petitioner 
thereby obtains the right to promote the cause legitimately and 
conduct it to the end. The local Ordinary can either ex officio 
or upon request draw up the cause of beatification (Canon 2003). 
With reference to his faculties, see below, Canons 2038-2064. 

The actor (or petitioner) may act either in person or through 
a proxy legitimately appointed for the purpose; women may 
act only through a proxy. The person who conducts the case 
in the competent court is called the postulator. Whether he 
acts in his own name or in the name of another, the postulator 
must be a secular or religious priest, who has a fixed residence 
in the city of Rome (Canon 2004). 

1908. There may be only one postulator in each case. Nobody 
except the postulator has the right to appoint by legitimate 
mandate substitutes, who are called vice-postulators (Canon 
2005). The postulator as well as the vice-postulators, if they 
act in the case by mandate of another, must exhibit their man- 
date to the court, before they are allowed to exercise their 
office. The mandate of the postulator must be drawn up in 
accordance with Canon 1659 (cfr. above, n. 1633), and it is 


CANONS 2003-2010 357 


not considered legitimate unless it has been accepted by the 
Sacred Congregation, and been entered in its acts. The mandate 
of the vice-postulators must be inspected and accepted by the 
court, in which they exercise their office (Canon 2006). 

1909. The postulator has the following duties: 

(1) to conduct the cause before the competent judges; 

(2) to make the necessary expenditures. However, money 
collected from the faithful for the expenses of the cause must 
be administered in accordance with the instructions of the Apos- 
tolic See; 

(3) to give to the court the names of the witnesses and the 
documents ; 

(4) to draw up and submit to the promotor fide: the points 
on which the witnesses in the processes are to be interrogated 
(Canon 2007). 

The mandate of the postulator who acts in the name of 
another expires for the same reasons as the mandate of other 
proxies expires in law (Canon 2008). Canons 1663-1664 dis- 
cuss the various ways in which such mandates are terminated. 


CHAPTER II 


OF THE CARDINAL RELATOR, PROMOTERS OF THE FAITH AND 
SUB-PROMOTERS 


1910. In the causes which are tried by the Sacred Congre- 
gation, one of the Cardinals of the Congregation shall be desig- 
nated by the Supreme Pontiff to act as relator or ponens. His 
office demands that he devote special attention to the cause, 
and report in the plenary or ordinary meeting of the Sacred 
Congregation all things which seem to favor or prejudice the 
cause (Canon 2009). 

1911. The promoter of the faith must take part in every 
proceeding, and he must always be summoned in accordance 
with the precept of Canon 1587. The promoter of the faith in 
the Sacred Congregation of Rites has the title of General Pro- 
moter of the Faith, and the Assessor of the same Sacred Con- 
gregation who assists him has the title of General Sub-Promoter 
of the Faith (Canon 2010). 

Outside the Sacred Congregation, a promoter of the faith 
may be appointed either for all causes or for a particular one 


358 A PRACTICAL COMMENTARY 


only. The General Promoter of the Faith and the General 
Sub-Promoter are chosen by the Supreme Pontiff. Promoters of 
the faith in the diocesan courts are nominated by the General 
Promoter, if they are to act in an Apostolic process, and have 
then the title of sub-promoters; if they act in the proceedings 
which the local Ordinaries may institute of their own right, 
they shall be appointed by the Ordinaries before they issue the 
decree spoken of in Canon 2043 (Canon 2011). 

1912. The promoter of the faith shall draw up plain, purely 
historical interrogatories, which shall be framed, not to elicit a 
certain answer from the witness, but in such a manner that 
the truth may be ascertained regarding the points proposed by 
the postulator, and even others. The interrogatories are to be 
submitted to the judges under obligation of secrecy. The pro- 
moter must, moreover, insist that the witnesses be summoned 
ex officio, and must offer proper objections to their testimony. 
The judge also can ex officio call witnesses who were not asked 
for or are even objected to by the promoter, but must inform 
the promoter of his action (Canon 2012). 


CHAPTER IIT 


OF THE NOTARY, CHANCELLOR AND ATTORNEYS 


1913. In all processes, whether conducted by the Apostolic 
See or by the local Ordinary in his own right, a notary or 
actuary must be present. The notary in the Sacred Congre- 
gation must be one of the Prothonotaries de numero partict- 
pantium (Canon 2018). 

Religious cannot validly exercise the office of a notary, ex- 
cept in case of necessity, and in the causes of their own organi- 
zation they are always excluded (Canon 2014). 

In processes conducted by the local Ordinary outside the 
City of Rome, the notary of the Curia may discharge the office 
of notary. In the City of Rome the Prothonotary of the Sacred 
Congregation exercises the office of notary, and in his absence 
the notary of the Vicariate of the City (Canon 2015). 

1914. An assistant may be assigned to the notary (the so- 
called adjunctus). This assistant helps in comparing copies with 
the original acts and transcripts with the autographie docu- 
ments preserved in libraries, archives, ete. (Canon 2016). 


CANONS 2011-2020 359 


The assistant notary and the Chancellor of the Sacred Con- 
gregation must be priests of unblemished character and above 
all reproach; the chancellor should also be a Doctor of Canon 
Law (Canon 2017). 

1915. The attorneys and proxies in the causes of beautifica- 
tion and canonization conducted by the Sacred Congregation 
must have obtained the degree of Doctor of Canon Law and at 
least the Licentiate in Sacred Theology, and they must have 
made an apprenticeship with some one of the attorneys of the 
same Sacred Congregation or with the General Sub-Promoter 
of the Faith; the attorneys must in addition have the legitimate 
title of attorney of the Roman Rota (Canon 2018). 


TITLE XXIII 


OF THE PROOFS TO BE SUPPLIED IN THESE 
PROCESSES 


CHAPTER I 


OF PROOFS IN GENERAL 


1916. In these causes the proofs must be altogether complete, 
and none are to be admitted except those which are established 
by means of witnesses or documents (Canon 2019). 

To prove that cult was never offered to a servant of God, 
at least four witnesses are necessary. To prove the reputation 
for virtues, martyrdom and miracles, eight witnesses at least 
are required who may be singular in the sense of the so-called 
circumstantial singularity (i.e., various witnesses who witnessed 
different circumstances of the same fact) ; besides, at least two 
witnesses must be summoned ex officio. To prove virtues or 
martyrdom, eye-witnesses and simultaneous witnesses are re- 
quired ; historical material can at most strengthen the evidence 
(Canon 2020, §§ 1-3). 

1917. If in the Apostolic process there are witnesses who 
testify as to what they heard from eyewitnesses and in the in- 
formative process there are eyewitnesses, all these can be com- 
bined in the line of proof. If, however, there are eyewitnesses 
in the informative process and in the Apostolic process there 
are only witnesses who testify what they heard from others who 


360 A PRACTICAL COMMENTARY 


themselves had knowledge from hearsay, their testimony has 
only a more or less corroborative force, as determined by the 
discretion of the judges. In such a ease the process can pro- 
ceed to the discussion of the miracles only if from the combined 
testimony of all the witnesses such proof is derived as to con- 
vince a prudent man who is judging a grave affair of the truth 
of the facts (Canon 2020, §§ 4-5). 

1918. In ancient causes proceeding by the way of non-cult 
in which there are no eyewitnesses nor witnesses who obtained 
their knowledge from eyewitnesses, and in causes which proceed by 
the way of the exceptional case (1.e., cult of the servant of God), 
the virtues and martyrdom can be proved by hearsay witnesses 
and from public reputation which constitutes an unbroken tradi- 
tion from hearsay and by contemporary documents or monu- 
ments recognized as authentic. Finally, miracles must always 
be proved by eyewitnesses and simultaneous (contestes) wit- 
nesses (Canon 2020, §§ 6-7). 

The contestes, which we render ‘‘simultaneous witnesses,’’ are 
defined by Vermeersch-Creusen ? as witnesses ‘‘whose testimony 
is in conformity with the testimony of other witnesses, whether 
they are eyewitnesses or heard the facts directly from trust- 
worthy eyewitnesses. ’’ 

1919. Immemorial cult is proved by authentic memorials 
which antedate by one hundred years or came into existence in 
the century prior to the Constitution of Pope Urban VIII, 
promulgated in the year 1634, provided they relate facts which 
happened at least one hundred years previously, and are sup- 
ported by an uninterrupted tradition: of the people (Canon 
2021). A cult of very long standing (longissimi temporis) per- 
mitted by the Apostolic See is segs by coéval documents 
(Canon 2022). 


CHAPTER II 


OF WITNESSES AND EXPERTS 


1920. In processes of beatification all the faithful except 
those specified in Canon 2027, nn. 1-3, are bound, even though ~ 
not summoned as witnesses, to bring to the notice of the Church 
those things which in their opinion disprove the virtue, or 


2 Epitome, III (2nd ed., 1925), n, 314, ad 3, 


CANONS 2020-2027 361 


miracles, or martyrdom of a servant of God (Canon 2023). As 
witnesses must be summoned by the promoter of the faith, 
though not proposed by the postulator, especially all those who 
lived or associated with the servant of God (Canon 2024). 

1921. Unless they already know that they are to be sum- 
moned as witnesses, all persons mentioned in Canons 2023-2024 
must inform their proper Ordinary by letter whether they have 
been associated with the servant of God, and briefly explain 
whether they know of some peculiar fact which should be re- 
vealed, and what it is; the Ordinary shall forward these letters 
to the promoter of the faith. 

Religious men and women shall seal these letters, and trans- 
mit them immediately and directly to the Ordinary or to the 
promoter of the faith, or shall hand them to the confessor, who 
shall see that they are forwarded as soon as possible to the 
Ordinary or to the promoter of the faith. 

Illiterate persons shall explain the matter to the pastor, who 
shall report it to the Ordinary or the promoter of the faith 
(Canon 2025). 

1922. Religious superiors are under grave obligation to see 
that all their subjects who are obliged to testify do so, but shall 
beware of urging them either directly or indirectly to testify 
in one manner rather than in another (Canon 2026). Thus, 
superiors are strictly forbidden to influence their subjects to 
conceal the faults of a servant of God and speak only of his 
good characteristics, or vice versa. 


QUALIFICATIONS OF WITNESSES 


1923. Blood-relations, relations by marriage, servants, here- 
tics and infidels may be admitted as witnesses. 

The following may not be admitted as witnesses: 

(1) the confessor in accordance with Canon 1757, n. 3, b; 

(2) the postulator, the attorney or procurator in the cause 
during the time of their office; if they have altogether with- 
drawn from their office, they may be admitted, but their testi- 
mony has merely corroborative force; 

(3) persons who at any time held the office of judge in the 
case (Canon 2027). 

1924. Physicians, who gave medical care to the person on 


362 A PRACTICAL COMMENTARY 


whom a miracle is said to have been performed, must be intro- 
duced as witnesses when there is question of miracles. If they 
refuse to appear in court, the judge shall procure at least a 
written and sworn statement about the illness and its course 
which is to be inserted in the acts of the cause, or he shall 
have their opinion taken by a person appointed for that pur- 
pose, and that person shall afterwards be examined (Canon 
2028). In their testimony, the witnesses must state the rea- 
sons for their personal knowledge of the things they assert ; other- 
wise their testimony shall not be considered as of any value 
(Canon 2029). To prove the reputation for sanctity or the 
martyrdom of a servant of God who belonged to some religious 
organization, it is necessary that at least one-half of the wit- 
nesses be persons outside such organization (Canon 2030). 


EXPERTS 


1925. When there is need of the testimony of experts, the 
following rules shall be observed: 

(1) there must be at least two experts, who shall be un- 
known to each other, and they shall testify as pointed out in 
n. 4 of this Canon; 

(2) they shall be appointed either by the court by a plu- 
rality of votes after consultation with the promoter of the 
faith, or, if they are to act for the Sacred Congregation, by the 
Cardinal Ponens after consultation with the Promoter General 
of the Faith. Those who have been witnesses in the cause must 
be always excluded from acting as experts; 

(3) the postulator shall not be informed of the persons 
chosen as experts, and the experts shall keep their appointment 
Secret; 

(4) the experts shall make their investigations individually 
and separately, unless the judge for a good reason, and with 
the assent of the promoter of the faith, allows them to institute 
their investigations jointly ; 

(5) each expert shall give a written report of his individual 
investigation; then they shall be separately questioned, even 
though they conducted the investigation jointly (Canon 2031). 


CANONS 2028-2035 363 


CHAPTER III 


OF THE DOCUMENTS TO BE SUBMITTED IN THE PROCESS 


1926. The documents on which the postulator relies must be 
submitted to the tribunal in complete form. The tribunal may 
also demand from the postulator other documents which in the 
judgment of the court may serve to reveal the truth (Canon 
2032). 

1927. Extrajudicial testimonies made in writing, whether by 
persons whom the postulator had presented to the court to 
testify on the virtues or the martyrdom of a servant of God, 
or by other persons whom the postulator proposed as witnesses, 
may not (even though presented in the processes) be counted 
among the documents which in the judgment of the sanctity or 
the martyrdom of a servant of God have the force of proof. 
Nor do eulogies at the funeral and necrologies written or printed 
immediately after the death of a servant of God constitute legiti- 
mate proof. Much less do the testimonies of men, no matter 
how illustrious, prove anything regarding the virtues and works 
of a servant of God, if they were written, not spontaneously, 
but at the request of friends during the lifetime of the servant 
of God (Canon 2033). Persons who exhibit documents must 
establish their origin and authenticity (Canon 2034). 

1928. Histories do not have the value of documents, unless 
they are based on documents which have been presented in the 
process. If some men of great authority have made use of 
documents now exhibited in the cause and have approved of 
them, their testimony can be adduced merely to confirm the 
authenticity and authority of the documents (Canon 2035). 

Historical documents, whether in manuscript or printed 
form, by which the postulator endeavors to prove the virtues 
of a servant of God or the antiquity and uninterrupted con- 
tinuation of the cult given to him, shall be inserted in the acts 
of the process, forwarded to the Sacred Congregation, and ex- 
amined by experts. If, however, any of these documents be 
kept in a library or in archives from which they cannot be 
removed, a copy or a photoprint shall be made with the written 
testimony of the notary of the tribunal as to its authenticity. 
If this also cannot be done, the matter shall be referred to the 


364 A PRACTICAL COMMENTARY 


Sacred Congregation, who shall appoint experts to examine the 
documents in the place where they are preserved (Canon 2036). 


TITLE XXIV 


OF THE PROCESS OF BEATIFICATION OF SERVANTS 
OF GOD BY THE WAY OF NON-CULT 


1929. The judges, promoter of the faith and sub-promoters, 
the notary and his assistant, who participate either in the proc- 
esses conducted by the authority of the local Ordinaries or in 
those conducted by delegates of the Holy See, must at the be- 
ginning of every process take an oath according to the formula 
prescribed by the Sacred Congregation that they shall discharge 
their office faithfully, shall keep the secret until the publication 
of the process, and shall not accept donations of any kind. The 
Ordinary, though not acting as judge, is nevertheless bound to 
take the oath to keep secrecy. Besides the oath of secrecy, the 
witnesses must before examination take the oath to tell the 
truth, and, after they have given testimony, the oath as to 
the truth of the statements made: no witness is excepted 
nor dispensed from these oaths. Experts, interpreters, revisers, 
and copyists must take the oath to discharge their offices well, 
before they enter on their duties, and, after they have done 
their work, they must affirm under oath that they have faith- 
fully done their duty. The messenger also shall take the oath 
that he will perform his work faithfully. The postulators and 
vice-postulators must take the juramentum calumniw—that is, 
swear that they shall speak the truth throughout the entire 
process and shall not act fraudulently in any manner. In 
processes before the Sacred Congregation, its own proper law 
as to the taking of oaths shall be observed (Canon 2037). 


CHAPTER I 


OF THE PROCESSES CONDUCTED BY THE LOCAL ORDINARY 
IN HIS OWN RIGHT 


1950. Before the cause of beatification of a servant of God 
can be presented to the Holy See, legal proof must be furnished 
of the purity of the doctrine in his writings, of his reputation 
for sanctity, virtues and miracles or martyrdom, of the absence 


CANONS 2036-2041 365 


of any obstacle which might peremptorily bar his cause, and 
finally that no public cult has been paid to him. If, therefore, 
the Ordinary judges that the petition should be admitted, he 
shall at the petition of the postulator: (1) examine the writ- 
ings of the servant of God; (2) start the informative process 
regarding the reputation ie sanctity, virtues in general or 
martyrdom, and the cause of the martyrdom or miracles; (3) 
institute the process ta prove non-cult (Canon 2038). 

1931. The competence to institute the foregoing proceedings 
is vested in the Ordinary of the place in which the servant of 
God died, or where the miracles took place; however, an Ordi- 
nary who is related to the servant of God (de gente) may not 
In person conduct the process. If the process regarding the 
reputation for sanctity or martyrdom was completed thirty years 
before, but the cause was for any reason interrupted before 
its legitimate introduction before the Holy See, the same Ordi- 
naries or their successors have the right to institute the infor- 
mative process over the continuation of the reputation for 
sanctity or martyrdom (Canon 2039). 

1932. The tribunal consists of the president, who is the Ordi- 
nary himself or a priest delegated for this purpose. If the 
Ordinary delegates a priest to preside, he must also appoint 
two other judges from among the synodal examiners. The 
Ordinary shall designate the president of the tribunal by de- 
cree, whether he himself fills that position or appoints a dele- 
gate with two associate judges, and in the same decree he shall 
appoint the promoter of the faith and the notary (Canon 2040). 

1933. The sessions of the court for the taking of oaths and 
the examination of witnesses shall, in so far as possible, be held 
during the daytime and in a sacred place. After every session, 
the acts of the cause must be closed and sealed with the seal 
of the judge, and may not be opened again until the judge has 
in the next session examined his seal and found it entire and 
intact ; if the seal has been tampered with, the judge shall refer 
the matter to the Sacred Congregation (Canon 2041). 


ARTICLE I.—OF THE EXAMINATION OF THE WRITINGS OF A SERVANT OF GOD 

1934. By the term ‘‘writings’’ are meant not only unpub- 
lished works of a servant of God, but also those which already 
have been printed ; also sermons, letters, diaries, autobiographies, 


366 A PRACTICAL COMMENTARY 


and everything that he wrote personally or through another 
(Canon 2042). 

1935. The Ordinary shall issue a public edict which is to 
be read, if possible, in all parishes of his diocese or published 
in another appropriate way, commanding all persons who have 
writings of the servant of God to forward them to the court, 
and recalling and emphasizing the precepts of Canons 2023- 
2025. If the servant of God belonged to a religious organiza- 
tion, the edict must be published also in every house of such 
organization, and the superiors are obliged under grave obliga- 
tion to see that this publication takes place, with explicit men- 
tion of the precept of Canon 2025, § 2, and that all who are 
in possession of writings shall forward them to the court. The 
promoter of the faith has the duty to insist on the publication 
of the edict also in other places, where there is hope that some- 
body may be found who has some writing of the servant of God 
(Canon 2043). 

1936. The Ordinary shall examine carefully the writings of 
a servant of God, not only when requested by the promoter of 
the faith, but also ex officio. If some writings are found in 
another diocese, the judge shall request the Ordinary of such 
diocese to examine them personally as required by law, and 
forward them to him together with the acts of the examination 
(Canon 2044). 

If some of the possessors desire to retain autograph writ- 
ings, the notary shall have an authentic copy made of these 
writings, and forwarded to the Sacred Congregation together 
with the process. With regard to writings preserved in libraries 
and archives, the precepts of Canon 2036 are to be observed 
(Canon 2045). 

The notary shall make a careful record of the number and na- 
ture of the writings and of the acts bearing on their examination. 
These acts must moreover be subscribed by the Ordinary or his 
delegate and by the promoter of the faith, and must be closed 
with the seal of the Ordinary (Canon 2046). 

1937. The postulator shall take an oath before the Ordinary 
that he will diligently examine the writings, and after the ex- 
amination that he has truly done so. If the servant of God is 
a woman who belonged to some religious organization, the 
supreme head of the organization or the abbess of a monastery 


CANONS 2042-2051 367 


shall take the oath that she has diligently examined the 
writings, that she has given to the court all the writings of the 
servant of God in her possession, and that she does not know 
of any other writings of the servant of God that are possessed 
by any one of her subjects or any other persons (Canon 2047). 

1938. If the cause of a martyr is in question, the examina- 
tion of his writings may take place even after a committee for 
the introduction of the cause before the Sacred Congregation 
has been appointed; the Promoter General of the Faith shall 
give instructions in reference to this examination (Canon 2048). 


ARTICLE II.—OF THE INFORMATIVE PROCESS 


1939. The informative process is conducted by the Ordi- 
naries, and, if it has not been begun within thirty years after 
the death of the servant of God, no proceedings may be insti- 
tuted before it is proved that there has been no fraud or malice 
or culpable negligence (Canon 2049). 

1940. In the examination of the witnesses on the reputation 
for sanctity, martyrdom, and miracles of the servant of God, 
the precepts of Canons 2019-2020 shall be observed. It is not 
necessary that the virtues, martyrdom, and miracles be specific- 
ally established: it suffices if the general fame or reputation 
of the servant of God is proved to be spontaneous, not artificial 
or created by human endeavor, but coming from righteous and 
Serious-minded persons, and that it was continuous, increased 
in the course of time, and was still in vogue with the greater 
portion of the people. After the general questions have been 
put to the witnesses as outlined by Canon 1774, the judge 
shall first of all ask them what knowledge they possess of the 
life, virtues, miracles, or martyrdom of the servant of God, how 
they obtained this knowledge, and whether they know that there 
is public rumor concerning these things; after this, they shall be 
questioned according to the interrogatories prepared by the pro- 
moter of the faith and on the points or articles offered by the 
postulator (Canon 2050). 

1941. The informative process cannot be closed until after 
the promoter of the faith has examined all the letters sent to 
him in accordance with Canon 2025, and has ascertained that 
the persons spoken of in Canons 2023-2025 have been examined 
(Canon 2051). 


368 A PRACTICAL COMMENTARY 


When the court is of the opinion that all proofs, both from 
the examination of witnesses and the exhibition of documents, 
have been collected, and all the writings of the servant of God 
which could be procured are now in the acts of the case, it shall 
after consultation with the promoter of the faith warn the 
postulator that, if he has anything else to present, he must do 
so within a fixed period of time. After the lapse of that period, 
the process is closed (Canon 2052). After this, the notary at 
the command of the judge, provided the promoter of the faith 
does not object, shall publish the process, which shall be 
given to a scribe or secretary appointed by the court to make 
a copy of the same (Canon 2053). The copy of the process— 
or the transumptum, as it is called—shall be written by hand 
like the original acts (Canon 2054). 

1942. The copy shall be compared with the venen by the 
notary and his assistant in the presence of one of the judges 
and of the promoter of the faith; after the collating of the 
copy, the notary, judge and promoter of the faith shall sign 
and seal it in proof of its authenticity (Canon 2055). The 
original acts are closed and sealed and deposited in the archives 
of the Curia; they may never be opened without permission of 
the Apostolic See. The copy is enclosed and sealed with the 
seal of the Ordinary, and the notary shall prepare in duplicate 
a document testifying to this act, one copy being sent to Rome, 
and the other preserved in the archives of the Curia (Canon 
2056). 


ARTICLE III.—OF THE PROCESS REGARDING NON-CULT 


1943. Besides the witnesses produced by the postulator, the 
court shall introduce two other witnesses ex officio, and question 
all whether public cult was ever given to the servant of God 
(Canon 2057). 

The court shall, moreover, go to and carefully inspect the 
tomb of the servant of God, the room in which he lived or where 
he died, and other places, if there be any, where one might 
justly suspect to find signs of public cult (Canon 2058). If 
in the course of the process there appear serious indications 
that public cult has in the meantime been given to the servant 
of God, the promoter of the faith shall insist that further in- 
vestigations be made into this matter (Canon 2059). The court 


CANONS 2052-2064 369 


shall decide by its sentence whether or not cult has been given 
to the servant of God (Canon 2060). 


ARTICLE IV.—OF TRANSMISSION TO THE SACRED CONGREGATION OF THE 
PROCESS ON THE WRITINGS OF THE SERVANT OF GOD, OF THE INFORMA- 
TIVE PROCESS, AND OF THE PROCESS OF NON-CULT 
1944, As soon as the Ordinary has finished the examination 

of the writings, he shall forward these writings to Rome, to- 

gether with an account of the proceedings taken in the exami- 

nation, called the processiculus diligentiarum **+ (Canon 2061). 

If after the examination of the writings of a servant of God 

other writings are discovered in the course of the process, these 

must be forwarded at once to the Sacred Congregation, and 
no further steps in the case can be taken until these writings 

have been inspected (Canon 2062). 

1945. The copy of the informative process (efr. Canons 2053-— 
2056) shall be given by the Ordinary to the postulator for trans- 
mission to the Sacred Congregation. Together with the copy he 
shall also send a letter from the judges to the Sacred Congrega- 
tion and a letter from the diocesan promoter of the faith to the 
Promoter General of the Faith, so that the Sacred Congre- 
gation may be informed both as to the credence to be given to the 
witnesses and of the legitimate execution of all the acts. The 
Ordinary shall also forward a description of the form of the 
seal with which he sealed the copy, or a copy of the seal 
(Canon 2063). 

The acts of the process regarding non-cult shall, upon its 
completion, be also transmitted by the Ordinary to the Sacred 
Congregation through the postulator (Canon 2064). 


CHAPTER II 


OF THE INTRODUCTION OF THE CAUSE BEFORE THE 
SACRED CONGREGATION 


ARTICLE {.—OF THE REVIEW OF THE WRITINGS 


1946. As soon as the writings of a servant of God have been 
received at Rome, they are to be examined. The Sacred Con- 
gregation, however, shall make proper investigation whether 
there are perhaps other writings, besides those exhibited, to be 


231 That is, a juridical report of the ways and means employed in the 
examination of the writings. 


370 A PRACTICAL COMMENTARY 


found in the hands of private individuals or in public archives 
(Canon 2065). 

In every individual cause the examiners of the writings shall 
be selected by the Cardinal Ponens after consultation with the 
Promoter General of the Faith, and their names shall be kept 
secret. To this office priests shall be appointed who are at least 
Doctors of Theology; or, if priests of a religious organization 
are appointed, they must have received an equivalent title 
(Canon 2066). The writings of the servant of God shall be 
given to the chosen examiners by the secretary, and every writ- 
ing shall be examined by two examiners, who are unknown to 
each other. If the writings are very numerous, there is no 
objection to dividing them into two parts, and having each part 
examined by distinct examiners (Canon 2067). 

1947. The opinion of the examiners must state whether there 
is anything in these writings which contravenes faith or good 
morals, and point out in a general way what characteristics, 
virtuous habits or defects of the servant of God are suggested 
by his writings. This opinion shall be given in writing and 
supported with arguments and reasons (Canon 2068). If the 
opinions of the examiners differ, a third examiner shall be ap- 
pointed in the manner specified in Canon 2066, and he shall 
examine the writings in the same manner as the other examiners 
(Canon 2069). 

1948. The Promoter General of the Faith shall propose for 
the discussion of the Cardinals of the Sacred Congregation any 
objections that he may have taken from the writings of the 
servant of God and the report of the examiners (Canon 2070). 
If it should be proved with certainty that the writings of the 
servant of God contain something which is not in absolute 
harmony with the faith, or something which at the present time 
might scandalize the faithful, the Roman Pontiff, after taking 
the vote of the Cardinals on the question and considering all 
circumstances of the case, shall decide whether the cause is to 
proceed (Canon 2071). A favorable decision of the Supreme 
Pontiff does not imply an approbation of the writings, and does 
not prevent the Promoter General of the Faith and the con- 
sultors from proposing objections from the writings in the dis- 
cussion of the virtues of the servant of God (Canon 2072). 


CANONS 2065-2079 371 
ARTICLE Il.—OF THE DISCUSSION ON THE INFORMATIVE PROCESS: 


1949. When the informative process drawn up by the Ordi- 
nary is received in Rome, the integrity of the seals is examined 
by the Prothonotary of the Sacred Congregation, and, if there 
is no objection (e.g., that the parcel has been tampered with 
in transit), the Roman Pontiff issues a special decree to the 
effect that the package be opened before the Cardinal Prefect 
of the Sacred Congregation, who then gives the acts of the 
process to the chancellor to be copied (Canon 2073). If neces- 
sary, the Cardinal Ponens shall have a translation of the proe- 
ess made by an approved translator in Rome, and shall after- 
wards submit the translation to an examiner (Canon 2074). 

The copy of the process sent by the Ordinary shall be pre- 
served in the archives of the Sacred Congregation, and the 
copy shall after proper legal endorsement by the chancellor be 
given by him to the postulator (Canon 2075). 

1950. The attorney and the procurator shall make a summary 
of the processes and a brief based on this summary. ‘To the sum- 
mary must be added the affidavit of the Sub-Promoter General 
of the Faith to the effect that the summary agrees with the 
acts submitted to the Sacred Congregation (Canon 2076). 

1951. Letters from persons occupying distinguished ecclesi- 
astical or civil offices or from organizations, in which the Supreme 
Pontiff is petitioned to take up the cause of the beatification of 
a servant of God, may be usefully presented, provided they have 
been written spontaneously and are based on personal knowledge 
(Canon 2077). 

1952. If, after the examination of these writings, it is de- 
-ereed that the cause may proceed, the Promoter General of the 
Faith shall draw up his objections to the introduction of the 
cause, and the attorney of the cause shall reply to these objec- 
tions (Canon 2078). The Promoter General of the Faith shall 
preface his objection to the introduction of the cause with a 
dispassionate and clear synopsis of the life of the servant of 
God. In preparing this synopsis, he shall use not only the 
documents contained in the summary of the attorney and pro- 
curator, but also other documents, if there are any which seem 
proper for the purpose (Canon 2079). | 

The objections and the answers shall be stated in brief and 
clear fashion, somewhat after the method of the scholastics, and 


372 A PRACTICAL COMMENTARY 


in accordance with the ancient customs of the Sacred Congre- 
gation (Canon 2080). Oral arguments, not only before the 
judges but also before all other persons who must vote on the 
ease, are forbidden in this and in all succeeding stages of the 
case (Canon 2081). 

1953. The judgment on the value of the informative process — 
drawn up by the Ordinary regarding the reputation for sanctity 
or martyrdom and on the absence of every peremptory obstacle 
is rendered by the Cardinals assembled in ordinary meeting; 
the Cardinal Ponens states and proposes the doubt: Whether 
a commission is to be appointed for the introduction of the 
eause and for the purpose in question (Canon 2082). If the 
judgment of the Cardinals is favorable, the Holy Father shall 
be petitioned to appoint, if he pleases, a commission for the 
introduction of the cause. If the Holy Father appoints the 
commission, a decree concerning the affair is drawn up by the 
Sacred Congregation and promulgated (Canon 2083). 

1954. After the decree for the introduction of the cause has 
been promulgated, the Ordinaries cannot take any further ac- 
tion in the cause without express permission of the Sacred 
Congregation. It is forbidden to honor with the title of ‘‘ Vener- 
able’? a servant of God whose cause has been merely intro- 
duced, and the postulators must beware lest, on the occasion of 
the introduction of the cause, they do anything in honor of the 
servant of God which savors of public cult (Canon 2084). 


ARTICLE IlI.—OF THE DISCUSSION OF THE PROCESS ON NON-CULT 


1955. After the commission for the introduction of the cause 
has been appointed, the Cardinals shall in an ordinary meeting 
discuss the question whether the report submitted by the Ordi- 
nary to the effect that no cult has been given to the servant of 
God is to be confirmed. If the decision of the Cardinals should 
declare that cult has been given to the servant of God, they 
may at their diseretion, and after weighing all the circumstances, 
suspend the cause until all signs of the forbidden cult have 
been removed, and obedience has been shown to this order (for 
removal of signs of cult) for a certain time to be fixed by the 
Cardinals (Canon 2085). 

1956. If the Ordinary has not yet completed the process on 
non-cult before the introduction of the cause, this process is to 


CANONS 2080-2087 373 


be instituted by authority of the Apostolic See. For this pur- 
pose the Promoter General of the Faith shall draw up inter- 
rogatories, which together with the remissorial letters spoken 
of in Canon 2087, shall be sent by the Sacred Congregation to 
Judges designated by itself. If there is question of martyrs in 
whose case the Ordinary has omitted to institute the process of 
non-cult before the introduction of the cause, there shall be 
added to the remissorial letters for the conduct of the process 
on martyrdom and the cause of. martyrdom a commission for 
the collection of proofs on non-cult, together with special inter- 
rogatories proposed by the Promoter General of the Faith 
(Canon 2086). 


CHAPTER III 
OF THE APOSTOLIC PROCESSES 
ARTICLE I.—OF THE INSTITUTION OF THE APOSTOLIC PROCESS 


1957. After the decree on non-cult has been issued, the so- 
called remissorial letters shall be asked of the Supreme Pontiff 
and forwarded by the Cardinal Prefect for the institution of the 
Apostolic process on the reputation for sanctity, miracles or 
martyrdom, and on the virtues and miracles in particular or 
on the martyrdom and its cause. These two processes shall 
be conducted separately, but the first may be omitted if the 
Cardinal Prefect and the Promoter General of the Faith do not 
deem it necessary or opportune to inquire again coneerning 
the continuation of the reputation. If the committee for 
the introduction of the cause has been appointed, but the decree 
on non-cult has not yet been issued, and if there is danger that 
some of the eyewitnesses may in the meantime die, the remis- 
sorial letters may be issued immediately for the institution of 
the Apostolic process on the virtues and miracles in particular 
or on the martyrdom and its cause, lest the proofs perish 
(Canon 2087). 

1958. The remissorial letters are to be addressed to at least 
five judges, who, if possible, should be men constituted in an 
ecclesiastical dignity. If the Ordinary is appointed as one of 
the judges, he shall act as president; otherwise, the president 
shall be appointed by the Sacred Congregation itself. It is 
proper that at least the president be not the same man who 
presided over the informative process. If the process is con- 


374 A PRACTICAL COMMENTARY 


cerned with the miracles, there should be appointed at least 
one expert (in addition to the judges), who shall be present 
at the sessions of the court and may request the judge to pro- 
pose to the witness questions necessary for the greater clarifi- 
cation of the verbal testimony and facts (Canon 2088). 

1959. To the remissorial letters shall be added special letters 
of the Promoter General of the Faith, in which he designates 
two sub-promoters to attend the »rocess in his name (Canon 
2089). i 

The Promoter General of the Faith shall prepare interroga- 
tories on the objections raised in the introduction of the cause and 
on the testimonies received in the informative process in accord- 
ance with Canon 2050; also on the extrajudicial information 
which he deemed it necessary to procure (efr. Canon 2079), even 
by enlisting the service of an expert if miracles were concerned 
(Canon 2090). 

1960. The remissorial letters are to be given to the postu- 
lator of the cause, who shall have them forwarded to the dele- 
gated president of the court. At the same time the interroga- 
tories shall be sent to one of the sub-promoters, and they shall 
remain sealed and be opened only in the act of the examination 
of witnesses to whom they are to be proposed (Canon 2091). 

1961. Before they enter upon their office, the delegated 
judges shall exhibit the letters of delegation to the Ordinary, 
who is obliged to give them the aid of his authority (Canon 
2092). After the receipt of the remissorial letters, the presi- 
dent of the court shall as soon as possible convoke the court, 
and shall in no case delay the convocation for more than three 
months, unless a just impediment intervenes, concerning which 
he shall within the same time inform the Sacred Congregation. 
The court shall in its first session choose a notary, an assistant 
notary, an expert, if the case calls for one, and a messenger, and 
the notary of the Curia shall draw up an attestation of this 
election (Canon 2093). 

Though all to whom the remissorial letters are addressed 
may be present at every session of the Apostolic process, it 
suffices for the validity of the proceedings if the president and 
two judges—or, with the consent and in the absence of the 
president, three other judges—one of the sub-promoters of the 
faith, and the notary or his assistant be present (Canon 2094). 


CANONS 2088-2099 375 


1962. The process must be finished within at least two years 
from the date of the opening of the letters. If, after the lapse 
of two years, the process has not been completed, it cannot be 
continued without the permission of the Apostolic See, and the 
Sacred Congregation shall be informed of the impediments which 
prevented the execution of the Apostolic mandate (Canon 2095). 

Before the Apostolic process on the specific virtues of the 
servant of God is finished, the court shall perform a juridical 
inspection of the remains of the servant of God in accordance 
with the precepts of the remissorial letters (Canon 2096). 

In the transcription of the acts, comparison with the origi- 
nals, and transmission of the copy to Rome, the precepts of 
Canons 2054-2056 and 2063 regarding the informative process 
shall be observed. The process shall be presented to the Sacred 
Congregation, and opened and transcribed in accordance with the 
precepts of Canons 2073-2075 (Canon 2097). 


ARTICLE II.—_OF THE JUDGMENT ON THE VALIDITY OF THE APOSTOLIC 
PROCESS 

1963. When the Apostolic process has been received by the 
Sacred Congregation, its validity must first of all be established, 
and at the same time the validity of the informative process 
is to be reéxamined (Canon 2098). Wherefore the attorney of 
the cause shall prepare the following before the discussion on 
the validity of the process: (1) information which proves from 
the documents of the process that all things were done in the 
process according to the rules of law; (2) objections against 
the validity made by the promoter general of the faith and 
the answers of the attorney, both drawn up in accordance with 
Canon 2080 (Canon 2099). 

1964. For the judgment on the validity of the process, a 
meeting shall be held at which the following must be present: 
the Cardinal Prefect of the Sacred Congregation, the Cardinal 
Ponens and three other Cardinals of the same Sacred Congre- 
gation chosen by the Roman Pontiff, the Secretary, Prothonotary 
Apostolic, the Promoter General of the Faith and the Sub- 
promoter. In the meeting the above-mentioned prelates give 
their vote under the direction of the Cardinal Ponens, and the 
Promoter General proposes objections, if he has any. After all 
things have been discussed, the Cardinals shall give their judg- 


376 A PRACTICAL COMMENTARY 


ment; if it is favorable and confirmed by the Supreme Pontiff, 
the decree on the validity of the process shall be drawn up 
(Canon 2100). 


ARTICLE Ill._OF THE JUDGMENT ON THE HEROIC CHARACTER OF THE 
VIRTUES IN PARTICULAR, OR ON THE MARTYRDOM AND ITS CAUSE 
1965. The discussion of the virtues shall not be begun until 

after the lapse of fifty years from the death of a servant of 

God (Canon 2101). The heroism of the virtues or the martyr- 

dom and its cause are to be discussed by three congregations: 

the antepreparatoria, preparatoria, and generalis (Canon 

2102). The prelates, who are officials and consultors of the con- 

sregations, shall in each congregation give their vote in writ- 

ing. After all the prelates and consultors have given their 
vote in the antepreparatory or in the preparatory congrega- 
tion, each one may again declare, before the congregation is 
dissolved, that he retracts the vote which he has given. The 
result of each ballot shall be consigned to writing by the sec- 
retary, and shall be kept secret; the written votes, however, 
shall be given to the Promoter General of the Faith (Canon 

2103). 

In the causes of confessors, the following question must be 
discussed: whether there is certainty of the heroic degree of the 
theological virtues of faith, hope, love of God and of neighbor, 
and of the cardinal virtues of prudence, justice, temperance, forti- 
tude, and of the virtues connected with the preceding in the 
ease and with the effect in question; in the causes of martyrs, 
whether there is certainty of the martyrdom and its cause and 
of the signs or miracles in the case and with the effect in question 
(Canon 2104). 

1966. The antepreparatory congregation meets in the pres- 
ence of the Cardinal Ponens and the prelate officials and con- 
sultors (Canon 2105). For this congregation a report shall be 
prepared, consisting of the following: (1) a summary of the 
original process, which must exhibit the testimonies and docu- 
ments in full; (2) a document drawn up by the attorney of 
the cause, in which he argues the heroism of the virtues, or the 
martyrdom and its cause, from the documents of the summary, 
and in which it shall be clearly stated what arguments are 
adduced as proofs strictly so-called, and what are added rather 


CANONS 2100-2113 377 


to aid or strengthen the proofs; (3) a synopsis by the Promoter 
General of the Faith in accordance with Canon 2079; (4) ob- 
jections of the Promoter General of the Faith and replies of 
the attorney; (5) the opinions written by the reviewers of the 
writings of the servant of God (Canon 2106). 

If two-thirds of the members of the congregation have given 
a negative vote, the case shall not proceed from the antepre- 
paratory to the preparatory congregation, unless, after the 
Cardinal Prefect has referred the matter to the Supreme Pon- 
tiff, the latter decides that the case should proceed (Canon 2107). 

The preparatory congregation is to be attended by all Car- 
dinals of the Sacred Congregation, with the assistance of the 
prelate officials and consultors (Canon 2108). The following 
documents are to be prepared: (1) difficulties raised by the 
Promoter General of the Faith; (2) difficulties which have been 
proposed by the consultors in their votes, if they do not appear 
negligible to the Promoter General; (3) replies of the attorney 
to the difficulties; (4) documents newly discovered either in 
favor of or against the cause, with summaries added thereto 
both in rebuttal and defence (Canon 2109). 

In the preparatory congregation the Cardinals, after con- 
sultation with the consultors, decide whether the ease shall pro- 
ceed further. The Secretary and the Promoter General of the 
Faith, though not asked, may always speak for the purpose of 
clarifying the question and shedding more light on the facts 
(Canon 2110). After the discussion, the Cardinal Prefect shall 
submit the matter to the Supreme Pontiff, and inform him, 
not only of the results of the discussion, but also of the prin- 
cipal reasons or arguments advanced for or against the cause 
(Canon 2111). 

1967. The General Congregation shall be held in presence 
of the Holy Father, and the Cardinals of the Sacred Congre- 
gation and the prelate officials and consultors shall also attend 
this meeting (Canon 2112). For the General Congregation the 
latest statement on the cause shall be prepared in accordance 
with Canon 2109, and in addition a brief ex officio report of 
all things which have previously been done in the cause (Canon 
2113). In the General Congregation the judgment whether the 
heroism of the virtues of a servant of God has been proved, 
or the martyrdom and its cause, is reserved to the Supreme 


378 A PRACTICAL COMMENTARY 


Pontiff; the consultors, prelate officials and Cardinals have 
merely a consultive vote (Canon 2114). 

1968. At the command of the Holy Father, the Secretary 
of the Sacred Congregation shall draw up a decree wherein it 
is authoritatively stated, in the name of the Supreme Pontiff, 
that the heroic degree of all the virtues of the servant of God 
or his martyrdom are well proved, which decree shall be promul- 
gated at a time and in a manner to be prescribed by the Holy 
Father. After the publication of this decree, the servant of 
God may be called Venerable, but this title does not imply any 
permission to honor him with publie cult (Canon 2115). 


ARTICLE IV.—OF THE JUDGMENT OF THE MIRACLES OF A SERVANT OF GOD 
IN PARTICULAR 

1969. Besides heroism of virtues or martyrdom, miracles 
wrought through the intercession of the servant of God are 
necessary for his beatification. However, if there is question 
of a martyr whose martyrdom and its cause are evidently estab- 
lished both from the material and formal aspect, but there are 
no miracles, it is the office of the Sacred Congregation to decide 
whether the signs in the ease suffice, and, if there are no signs, 
whether the Holy Father is to be petitioned to dispense with 
the signs in the case (Canon 2116). 

The signs (signa), in contradistinction to the miracles, are 
minor miracles or marvelous facts, which do not satisfy all the 
conditions of a clear and evident miracle, or also miraculous 
gifts of the servant of God (e.g., prophecy, knowledge of things 
secret, etc.). 

1970. For the beatification of servants of God only two 
miracles are required, if eye-witnesses in both the informative 
and the Apostolic process have established proof of the virtues, 
or if the witnesses examined in the Apostolic process at least 
received their knowledge from eye-witnesses. Three miracles 
are required if eye-witnesses testified to the heroic character 
of the virtues in the informative process, and in the Apostolic 
process witnesses who derived their information from others 
who in turn obtained their information from eye-witnesses. 
Four miracles are required, if in both processes the virtues were 
established by witnesses who obtained their knowledge from 
tradition only or by documents (Canon 2117). 


CANONS 2114-2122 379 


1971. For the proof of the miracles two experts must be 
introduced ex officio at the beginning of the discussion; if both 
agree on the rejection of a miracle, one cannot proceed further 
with the cause. As it happens most frequently that, in the 
discussion of the miracles, there is question of a cure from some 
disease, the experts must be unusually prominent physicians or 
surgeons, and, if possible, such men are to be chosen who are 
specialists in the diagnosis and cure of the ailments of which 
there is question in the reported miracle (Canon 2118). 

The opinions of the experts must be written in brief and 
ciear style and supported by reasons, and they shall state these 
two things: (1) whether, if there is question of a cure, the 
person who is said to have been cured, must truly be consid- 
ered cured; (2) whether the fact proposed as miraculous can 
be explained by the laws of nature or not (Canon 2119). 

1972. The miracles must be discussed by three congregations 
in exactly the same manner as is ordained above for the proof 
of heroism of the virtues. In the discussion in one and the 
same congregation, with the exception of the general congre- 
gation before the Holy Father, more than two miracles may 
never be submitted (Canon 2120). 

For the Antepreparatory Congregation the following state- 
ments shall be prepared: (1) a brief written by the attorney; 
(2) a summary of the depositions of witnesses; (3) the two 
opinions written regarding the reality of each miracle by the 
experts; (4) objections of the Promoter General of the Faith; 
(5) the answers of the attorney to the objections (Canon 2121). 

For the Preparatory Congregation a statement shall be pre- 
pared in the manner demanded by Canon 2109, with new expert 
opinion as follows: For the giving of this opinion one expert 
only is to be appointed in this instance, if the two experts in 
the. Antepreparatory Congregation were unanimous in affirming 
the miracle; if one expert only was in favor of the miracle, two 
new experts are to be nominated ex officio. The Cardinals of 
the same Sacred Congregation shall always have the right to 
appoint more experts than are prescribed, if they should deem 
it necessary in any case. The attorney is permitted to employ 
the aid of some expert in drawing up his answers, but this 
expert cannot give a vote or official opinion, and merely assists 
the attorney (Canon 2122). 


380 A PRACTICAL COMMENTARY 


1973. The General Congregation is conducted in the man- 
ner prescribed in Canons 2113-2114 (Canon 2123). After the 
decree of approval of the miracles, a new discussion must be 
instituted before the Supreme Pontiff on the question: Whether 
one may sately proceed to the beatification of the Servant of 
God. After having heard the opinions of the consultorg and 
the Cardinals, the Supreme Pontiff decides this question, and, 
if he wishes, orders that a decree concerning this matter shall 
be drawn up and promulgated (Canon 2124). 


TITLE XXV 


OF THE PROCESS OF BEATIFICATION OF SERVANTS 
OF GOD BY THE WAY OF CULT OR THE EXCEP- 
TIONAL CASE 


1974. For the servants of God who, after the pontificate of 
Alexander III and before the time set by the Constitution of 
Pope Urban, had been honored with public cult by tolerance, 
the positive approval of that cult can be asked from the Roman 
Pontiff. To obtain this approval, the process outlined in the 
following Canons must be instituted (Canon 2125). 

The Ordinary competent to institute this process is the Ordi- 
nary of the place where cult is given to the servant of God or 
where the documents of such cult are to be found. If several 
local Ordinaries are competent (e.g., because of cult given to 
the servant of God in several dioceses), the Ordinary who first 
begins the process (jus preventionis) is competent to conduct it 
(Canon 2126). 

1975. At the request of the postulator the Ordinary must: 

(1) examine the writings of the servant of God; 

(2) institute the process on the repute for sanctity of life, 
virtues or martyrdom and miracles, whereby answers shall he 
given to these questions: Whether in that place there is a con- 
stant and common repute and conviction of the holiness of life 
of the servant of God or of his martyrdom and its cause, and 
also of miracles wrought at his intercession; whether the cult 
of the servant of God flourishes there at present, and by what 
marks of veneration he is honored (Canon 2127). 

1976. After the acts of this process have been forwarded 
to the Sacred Congregation in the manner specified in Canons 


CANONS 2123-2135 381 


2061-2063, the question whether a committee is to be appointed 
for the introduction of the cause shall be submitted in ordi. 
nary meeting to the discussion of the Cardinals under the di- 
rection of the Cardinal Ponens (Canon 2128). 

1977. The committee having been appointed, remissorial let- 
ters shall be issued to the men designated by the Sacred Con- 
gregation, so that the Apostolic process may be instituted in 
accordance with the rules of law, and sentence pronounced by 
the delegated judge (Canon 2129). The process must establish 
the. beginning of the cult and its uninterrupted continuation 
up to the time of the sentence of the delegated judge (Canon 
2130). 

After the process has been forwarded to the Sacred Con- 
gregation and has been opened, and after the attorney of the 
cause has prepared his case together with the objections of 
the Promoter General of the Faith and his own answers to the 
objections, the following question shall be proposed in ordinary 
meeting: Whether the verdict of the delegated judge is to be 
confirmed, and whether the exceptional case is proved with 
such certainty that the process may be permitted to proceed 
(Canon 2131). 

1978. The confirmation of the verdict of the delegated judge 
on the part of the Roman Pontiff has merely the effect of 
establishing the fact that immemorial cult has been given to the 
servant of God and that it has continued up to the time of the 
issuance of the verdict (Canon 2132). If the sentence on the 
exceptional case is favorable and is approved by the Supreme 
Pontiff, remissorial letters shall be issued for the institution of 
the process on the virtues or the martyrdom and its cause, as 
the case may demand. In these processes the precepts of 
Canons 2087-2115 shall be observed (Canon 2133). 

1979. After the issuance of the decree on the fact of im- 
memorial cult and on the heroism of the virtues or on the mar- 
tyrdom, the servant of God is to be considered equivalently 
beatified, if confirmation of his cult is contained in the decree 
of the Roman Pontiff (Canon 2134). Servants of God who are 
given this equivalent beatification, may be honored with the 
same marks of public cult by which formally beatified persons 
are usually honored (Canon 2135). 


382 A PRACTICAL COMMENTARY 


TITLE XXVI 
OF THE CANONIZATION OF THE BEATIFIED 


1980. Nobody may ask for the canonization of a servant of 
God, or petition the Sacred Congregation for permission to 
honor him with certain acts of public cult, unless it is first 
proved that such servant has been raised to the ranks of the 
beatified by either a formal or equivalent beatification (Canon 
2136). 

To prove to the Sacred Congregation the formal or equiva- 
lent beatification in any case, an authentic document must be 
exhibited. If no such document is available, a legitimate proc- 
ess must be instituted to prove the fact that positive permis- 
sion of cult has been granted by the Roman Pontiff. After 
the completion of the process, a verdict shall be pronounced 
in ordinary congregation, and this shall be submitted for the 
approval of the Supreme Pontiff (Canon 2137). 

1981. For the canonization of formally beatified persons, 
proof is required of two miracles which have happened since 
the formal beatification. For the canonization, however, of 
equivalently beatified persons, proof is required of three mir- 
racles which have been wrought after the equivalent beatifica- 
tion (Canon 2138). When it is claimed that some miracle has 
been worked at the intercession of a beatified person, the 
Sacred Congregation at the instance of the postulator, if His 
Holiness approves, issues a decree that the cause be resumed 
and new processes instituted in accordance with the regula- 
tions given in the preceding Canons. After proof of the valid- 
ity of the processes, the discussion on the new miracles is 
governed by the same laws as were stated above in Canons 
2116-2124 (Canon 2139). 

1982. All these things having been done, the Roman Pontiff 
considers the vote of the Cardinals and consultors and, if he 
judges it proper, issues a decree by which he pronounces that 
the cause may safely proceed to the solemn canonization of the 
beatified person (Canon 2140). After the solemn canoniza- 
tion of a beatified person has been decreed in consistory, the 
canonization ceremony shall be held with the sacred rites and 
solemnities customary in the Roman Curia (Canon 2141). 


PART THREE 


OF THE MANNER OF PROCEDURE IN CONDUCT- 
ING CERTAIN AFFAIRS AND IN THE APPLI- 
CATION OF PENAL SANCTIONS 


1983. In the trials spoken of below a notary must always 
be employed to keep the minutes of the proceedings: these 
minutes must be subscribed by all who take part in the respec- 
tive acts (e.g., in the examination of witnesses their deposi- ° 
tions are to be subscribed by them, the notary and the judge) 
and preserved in the archives (Canon 2142). 

Whenever admonitions are prescribed, these must be given 
either orally before the chancellor or another official of the 
Curia or in the presence of two witnesses, or by mail as pre- 
scribed by Canon 1719. An authentic record of the adminis- 
tering of the admonition and of its tenor shall be preserved 
among the acts of the case. A person who evades an admoni- 
tion, is considered admonished (Canon 2143). 

By his very appointment the chancellor is also a notary 
(cfr. Canon 372). The bishop may also appoint other notaries 
—even laymen, if clerics are wanting, but in criminal cases of 
clerics the notary must be a priest (efr. Canon 373). 

1984. The examiners and consultors and the notary must at 
the beginning of a trial promise under oath to keep the secret 
in reference to all things of which they obtain knowledge in 
virtue of their office, and especially about secret documents, the 
discussions held in meetings, and the number and motives of 
votes or opinions given on matters pertaining to a case. If 
they have disobeyed this precept, they should not only be re- 
moved from their office, but also be punished by the Ordinary 
with an appropriate penalty, observing the rules of law for 
penalties which require certain formalities. They are, more- 
over, obliged to repair any damages they have caused by the 
violation of a secret (Canon 2144). 


383 


384 A PRACTICAL COMMENTARY 


1985. In these trials (ic., for the removal and transfer of 
pastors, and in proceedings against elerics who do not keep the 


law of residence, against clerics guilty of concubinage, and - 


against pastors neglectful in their pastoral duties), summary 
proceedings are to be instituted. Nevertheless, two or three 
witnesses summoned either ex officio or presented by the party 
may be heard (audit non prohibentur), unless the Ordinary 
after consultation with the parochial consultors or the examiners 
believes that the parties present the witnesses for the purpose 
of delaying the case. Witnesses and experts shall not be ad- 
mitted, unless they have been sworn (Canon 2145). 

1986. From the final decree or decision in the cases men- 
tioned in the preceding paragraph, there 1s but one remedy in 
‘ law, namely, recourse to the Apostolic See. In such a ease, all 
the acts of the process must be forwarded to the Holy See, and 
pending the recourse, the Ordinary cannot validly give per- 
manently to another a parish or benefice of which the cleric was 
deprived (Canon 2146). 

The recourse does not suspend the sentence of the bishop, 
and the pastor who was deprived of his parish must leave it; 
but, pending the outcome of his appeal to the Holy See, the 
bishop can appoint only an administrator, and cannot definitely 
appoint a successor. 


TITLE XXVII 


OF THE MANNER OF PROCEDURE IN THE REMOVAL 
OF IRREMOVABLE PASTORS 


1987. The distinction between irremovable and removable 
pastors is a matter of title rather than of permanency in office, 
for, though the formalities for the removal of the irremovable 
pastors are somewhat different from those for the removal of 
removable pastors, the reasons for which removal proceedings 
ean be instituted are the same in both cases (cfr. Canons 2147, 
9157). Since there is no appeal to a court outside the diocese 
possible in these cases (cfr. Canon 9146), and the men of the 
diocese who together with the bishop take part in the trial for 
removal of a pastor are themselves dependent on the bishop, 
the only remedy which remains to a pastor who believes that 
his removal is unfair consists in recourse to the Holy See. 








CANONS 2145-2147 385 


REASONS FoR REMOVAL 


1988. An irremovable pastor may be removed from his par- 
ish for a reason which makes his ministry in the parish harmful 
or at least inefficacious, even though there be no grave guilt 
on the part of the pastor. These reasons are especially the 
following: 

(1) incompetency or permanent mental or bodily infirmity 
which incapacitate the pastor from discharging properly the 
duties of his office, if the Ordinary judge that the welfare of 
souls cannot be provided for by the appointment of an assistant 
priest (the vicarius adjutor spoken of in Canon 475) ; 

(2) the hatred of the people, though unjust and not uni- 
versal, provided it is such as to hinder the useful ministry of 
the pastor, and is not expected to abate soon ; 

(3) loss of good reputation among virtuous and serious men, 
whether this is caused by the levity of conduct of the pastor, 
or by a former offense which has recently been detected and 
for which he cannot now be punished on account of pre- 
scription barring prosecution, or by the eonduct of members 
of his household or blood-relations living with him, unless by 
their departure the good reputation of the pastor can be re- 
stored ; 

(4) a probable occult crime imputed to the pastor which is- 
of such a nature that the Ordinary prudently foresees that 
great scandal may be thereby provoked among the faithful ; 

(5) inefficient administration of the temporal goods with 
great damage to the church or benefice, whenever the evil can- 
not be remedied either by depriving the pastor of the adminis- 
tration or in some other manner, though otherwise the pastor 
usefully exercises the spiritual ministry (Canon 2147). 

1989. These are the chief reasons for removal, although 
other reasons are not excluded. The Code has but one prin- 
ciple in this matter, namely, the good of the parish; and, if 
the parish suffers seriously either in its spiritual or its temporal 
wellbeing and the harm cannot be averted except by removal 
of the pastor, he must be sacrificed for the sake of the common 
weal. The reasons stated by the Code as the chief causes for 
removal are vague, for the Code leaves it to the conscience and 
the discretion of the bishop to decide whether the removal is 


386 A PRACTICAL COMMENTARY 


truly necessary to avert serious spiritual or temporal harm 
from the parish. The removal is not a matter of punishment, 
for, if it were, the vagueness of the reasons for removal would 
be inexcusable ; it is simply a case in which private rights which 
conflict with the common welfare must be sacrificed. 

The Council of Trent has the following law: ‘‘Inasmuch 
as illiterate and unskilled rectors of parish churches are but 
little fit for the sacred offices; and others, by reason of the 
turpitude of their lives, rather destroy than edify; the bishops, 
even as the delegates of the Apostolic See, may depute to the 
said illiterate and unskilled rectors, if they be otherwise of a 
blameless life, coadjutors or vicars for the time being, and 
assign to the same a part of the fruits for their sufficient 
maintenance, or provide for them in some other manner, setting 
aside any appeal or exception whatsoever. But, as for those 
who live shameful and scandalous lives, they shall, after having 
first admonished, restrain and punish them; and, if they shall 
still continue incorrigible in their wickedness, they shall have 
power to deprive them of their benefices, according to the 
constitutions of the sacred canons, setting aside every exemp- 
tion or appeal whatsoever.’’? At the Vatican Council the Ger- 
man bishops requested the passage of a law providing for an 
involuntary transfer of pastors, or a dismissal with a sufficient 
pension, if the pro-synodal examiners had pronounced them 
unfit. The Council was interrupted and no action was taken 
on this proposal.2. The Decree ‘‘Maxima cura’’ of the Sacred 
Consistorial Congregation, August 20, 1910, provided for the 
administrative removal of pastors,? and the Decree was de- 
clared applicable also to the United States on March 13, 1911, 
and to England on February 28, 1911.4 Practically all the 
provisions of this Decree have been embodied in the Code, but 
the reasons for removal have been extended beyond those given 
by the Decree. The welfare of the people is the supreme law, 
and private rights and interest must give way to the public 
necessity or utility.® 

1Sessio XXI, c. 6, De Reform. 

2 Augustine, ‘‘Commentary,’’ VII, 410. 

3 Acta Ap. Sedis, Il, 636. 


4 Acta Ap. Sedis, III, 133. 
5 Decisiones S. Rom. Rote, III, 43. 


CANONS 2148-2149 387 


INVITATION TO RESIGN PARISH 


1990. Whenever the Ordinary prudently judges that a pas- 
tor has fallen into any of the causes stated in Canon 2147, he 
shall consult two of the examiners and discuss with them 
whether the cause really exists and how serious it is, and then 
he shall invite the pastor, either in writing or orally, to resign 
his parish within a specified length of time, unless there is 
question of a pastor whose mind is affected. The invitation 
must, under pain of invalidity of the proceeding, contain the 
reason which moves the Ordinary to take this step, and the 
arguments which have convinced him of the existence of the 
reason (Canon 2148). 

1991. If the pastor within the specified period neither re- 
signs nor requests a delay, nor attacks the reasons cited for 
removal, the Ordinary shall at once remove him from the 
parish without being obliged to observe the precept of Canon 
2154, provided he has first ascertained that a properly exe- 
cuted invitation to resign came to the notice of the pastor (i.e., 
that he actually received the invitation, or that he purposely 
evaded its reception), and that the pastor was not legitimately 
hindered from answering the invitation. If there is no cev- 
tainty about those two points, the Ordinary shall either repeat 
the invitation to resign, or prolong the time (tempus utile) for 
the answer (Canon 2149). The prolonged time is called tempus 
utile to imply that it does not lapse if the pastor is legitimately 
prevented from acting within that time (e.g., by illness, by 
being called away from home by a death in his family, ete.). 


EFFECTS OF THE ACCEPTANCE OF INVITATION TO RESIGN 


1992. If the pastor resigns his parish, the Ordinary shall 
declare the parish vacant by resignation. Instead of the reason 
stated by the Ordinary, the pastor may give some other less 
disagreeable or serious motive for resigning, provided it is true 
and honorable—e.g., in order to comply with the wishes of the 
Ordinary. The resignation may be made not only pure and 
simple, but also conditionally, provided the condition is such 
that it can be and actually is accepted by the Ordinary. The 
resignation must, according to Canon 186, be made either in 


388 A PRACTICAL COMMENTARY 


writing, or orally before two witnesses, or by a proxy ap- 
pointed by special mandate, and a document recording the 
resignation must be placed in the archives of the Curia (Canon 
2150). 


REFUSAL TO RESIGN AND FoRCED REMOVAL 


1993. If a pastor wishes to attack the reason for removal 
cited in the invitation to resign, he may ask for delay to pre- 
pare his proofs, which delay the Ordinary may grant at his 
discretion, provided that no detriment will be thereby caused 
to the spiritual welfare of the parishioners (Canon 2151). 

Before he can validly accept or reject the pastor’s reasons 
for refusing to resign, the Ordinary must consult the exam- 
iners, spoken of in Canon 1248, and carefully weigh these 
reasons. The decision, whether affirmative or negative, shall 
be communicated to the pastor by a decree (Ganon 2152). 
The Decree ‘‘Maxima cura’’ ordained that the examiners give 
their opinion by secret vote. By the law of the Code the Ordi- 
nary alone renders the decision, but he cannot do so without 
first consulting the examiners. It is immaterial in what man- 
ner they express their opinion, and he is not obliged to fol- 
low it. 


ReEcouRsE AGAINST First DECISION oF REMOVAL 


1994. Within ten days after the decree of removal, the 
pastor may have recourse to the same Ordinary against the 
decision. For the validity of the proceedings, the Ordinary 
must, in consultation with two of the parochial consultors, 
examine the new allegations made by the pastor together with 
the reasons he advanced in the first stage of the procedure. 
The pastor must produce the new proofs within ten days after 
recourse. The decision is given by the Ordinary, who is not 
obliged to follow the opinion of the parochial consultors. (The 
proceedings, however, must be recorded and with it the opinion 
of the consultors, wherefore the Ordinary must be certain of 
his reasons if he were to disregard the unanimous opinion of the 
two consultors.) Subject to the precepts of Canon 2145, the 
pastor may produce in these proceedings a limited number of 
witnesses, if he can prove that he was unable to produce them 


CANONS 2150-2156 389 


in the first stage. The new decision is to be made known to the 
pastor by decree (Canon 2153). 

Canon 2146 states that, from the final decision in these cases, 
no appeal to a superior court is granted, but only a recourse to 
the Apostolic See. That Canon, however, does not state within 
what time the recourse can be made. The Sacred Congregation 
of the Council, January 12, 1924, decided that the pastor has 
ten days (tempus utile) from the notification of the final de- 
cision to have recourse to the Holy See, and he must inform 
the local Ordinary of his appeal.® 


PROVISION TO BE MADE FOR REMOVED PASTOR 


1995. After a pastor has been removed, the Ordinary shall 
consult the examiners or the parochial consultors who took part 
in the proceedings of removal, and carefully decide what pro- 
vision should be made for the pastor. According to the facts 
and circumstances of the case, he may be either transferred to 
another parish, or assigned some other office or benefice (if he 
is capable of filling it), or pensioned. All other things being 
equal, a pastor who resigns is to receive more favorable con- 
sideration in this provision than a pastor who was removed 
(Canon 2154). The question of providing for the removed 
pastor may be settled by the Ordinary either in the decree of 
removal or afterwards, but it should be done as soon as pos- 
sible (Canon 2155), 


Duty To Osry DECREE oF REMOVAL 


1996. The priest who is removed from a parish must as 
soon as possible vacate the parochial residence and hand over 
to the new pastor or to the administrator appointed temporarily 
by the Ordinary all things pertaining to the parish. If, how- 
ever, the removed priest should be sick, and thus cannot with- 
out inconvenience be transferred from the rectory to another 
place, the Ordinary shall let him have the use of the house, 
even the exclusive occupation, while the necessity lasts (Canon 
2156). 


6 Acta Ap. Sedis, XVI, 162. 


390 A PRACTICAL COMMENTARY 


¢ 


TITLE XXVIII 


OF THE MANNER OF PROCEDURE IN THE REMOVAL 
OF REMOVABLE PASTORS 


1997. A removable pastor can be removed from his parish 
for a just and grave reason, as explained in Canon 2147. In 
the case of the removal of religious pastors, the precept of 
Canon 454 is to be observed (Canon 2157). 

If the Ordinary believes that there is one of these causes 
for removal, he shall paternally admonish and exhort the pastor 
to resign the parish, declaring the reason which renders his 
ministry in the parish harmful or at least inefficacious (Canon 
2158). 

If the pastor does not answer the invitation within the days 
fixed by the Ordinary, Canon 2149 applies. If he replies that 
he refuses to resign, he shall state his reasons in writing which 
the Ordinary for the validity of the proceedings must discuss 
with two of the examiners (Canon 2159). 

1998. If, after hearing the examiners, the Ordinary does not 
judge the reasons advanced by the pastor to be legitimate, he 
shall renew his paternal admonitions to the pastor, and threaten 
him with removal, if he does not of his own accord resign the 
parish within a proper period of time determined by the Ordi- 
nary (Canon 2160). 

After the lapse of the specified term, which may be pro- 
longed by the Ordinary at his discretion, he shall issue the 
decree of removal. The Ordinary is obliged to provide for the 
resigning or removed pastor according to Canons 2154-2156 
(Canon 2161). 

Canon 2146 in reference to the recourse to the Holy See 
against the decree of removal applies also in the case or the 
removal of a removable pastor. Since, in ease of recourse, the 
Ordinary must forward the proceedings of removal to the Holy 
See, it is important that a notary record all the acts from the 
admonition to resign to the decree of removal. 


CANONS 2157-2167 391 


TITLE XXIX 


OF THE MANNER OF PROCEDURE IN THE TRANSFER 
OF PASTORS 


1999. If the good of souls necessitates the transfer to another 
parish of a pastor who is administering his parish satisfactor- 
ily, the Ordinary shall propose the transfer to the pastor and 
persuade him to consent to the change for the love of God and 
the welfare of souls (Canon 2162). 

The Ordinary cannot transfer an irremovable pastor against 
his will, unless he has obtained special faculties from the 
Apostolic See. A removable pastor, however, may be trans- 
ferred even against his will, if the parish ad quam (to which he 
is to be transferred) is not of a greatly inferior rank, provided 
the following Canons are observed (Canon 2163). 

2000. If the pastor does not yield to the counsel and persua- 
sion of the Ordinary to accept another parish, he shall explain his 
reasons for refusal in writing (Canon 2164). If, notwithstand- 
ing the reasons stated by the pastor, the Ordinary desires to 
make the change, he must for valid action hear two parochial 
consultors on the reasons advanced by the pastor, and discuss 


with them the circumstances of both the parish a qua and the a 


parish ad quam, and the reasons which make the transfer of the 
pastor either useful or necessary (Canon 2165). 

2001. If, after consultation with the parochial consultors, 
the Ordinary still believes that the transfer should be made, he 
shall repeat the paternal exhortations to the pastor to accede 
to the wishes of his superior (Canon 2166). If the pastor 
nevertheless refuses to resign, and the Ordinary still desires to 
make the transfer, he shall command the pastor to move to the 
new parish within a specified time, informing him in writing 
that the parish which he now holds shall be ipso facto vacant 
on the expiration of term specified. If this period elapses with- 
out results, the Ordinary shall declare the parish vacant (Canon 
2167). 

Recourse to the Holy See against the transfer is permissible, 
for Canon 2146 seems to apply to all of the six cases outlined 
in Part Three, Book Four, but, as Vermeersch-Creusen remark, 


392 A PRACTICAL COMMENTARY 


the recourse is not advisable unless the Ordinary’s action is 
evidently unfair.’ 


TITLE XXX 


OF THE MANNER OF PROCEDURE AGAINST CLERICS 
VIOLATING THE LAW OF RESIDENCE 


2002. Any pastor, canon, or ‘other cleric, who violates the 
law of residence to which he is bound by reason of his 
benefice, shall be admonished by the Ordinary, who shall mean- 
while, if there is question of a pastor, make provisions at the 
expense of the pastor to prevent any detriment to the welfare 
of souls. In the admonition the Ordinary shall remind the 
offender of the penalties which clerics incur who do not keep 
residence, and also of the precept of Canon 188, n. 8, in accord- 
ance with which the benefice shall become vacant ipso facto, if 
he does not obey or answer the admonition; the Ordinary shall 
specify the period of time within which the cleric must resume 
residence (Canon 2168). 

This Canon speaks of clerics only who are obliged to keep 
residence by reason of a benefice. Wherefore, the procedure 
here laid down applies only to clerics who hold residential bene- 
fices. Nevertheless, Canon 143 forbids all clerics, even though 
they hold no benefice or office which requires residence, to leave 
the diocese for a notable length of time without permission of 
their Ordinary, and if they violate this law the Ordinary can 
certainly punish them. Canon 188, n. 8, decrees the 2pso facto 
loss of a benefice or office which requires residence, if a cleric 
illegitimately deserts the benefice or office, and, after having 
been admonished to return within a specified time, does not 
return or answer. 


EFFECT OF THE ADMONITION TO RETURN 


2003. If a cleric does not resume his residence within the 
specified time or give reasons for his absence, the Ordinary 
shall declare the parish or other benefice vacant; before issuing 


7 Epitome, III, n. 363, 


CANONS 2168-2174 393 


the declaration, he shall observe the formalities of Canon 2149 
(Canon 2169). 

If the cleric resumes residence, and if his absence has been 
illegitimate, the Ordinary is bound not only to punish him with 
deprivation of the income of the benefice for the time of his 
absence (as Canon 2381 requires), but he may also, if the case 
calls for it, punish him with other penalties in proportion to 
his guilt (Canon 2170). 

2004. If the cleric does not resume residence but gives rea- 
sons for his absence, the Ordinary together with two examiners 
shall consider whether the reasons are legitimate, and if neces- 
sary institute proper investigations (Canon 2171). If, after 
consultation with the examiners, the Ordinary judges that the 
reasons are not legitimate, he shall again give the cleric a specl- 
fied interval within which he must return. Since his absence is 
declared illegitimate, he must be deprived of the income of his 
benefice for the time of his illegal absence (Canon 2172). 

2005. If a removable pastor does not return to his parish 
within the prescribed time, the Ordinary may at once proceed 
to deprive him of the parish. If he returns, the Ordinary shall 
give him a precept not to again leave his parish without written 
permission under penalty of deprivation of the parish to be 
incurred ipso facto (Canon 2173). 

2006. If a cleric who holds an irremovable benefice does not - 
resume residence after the Ordinary has rejected his reasons 
for absence, but adduces new reasons, the Ordinary shall con- 
sult the two examiners spoken of in Canon 2171, and shall 
together with them investigate the reasons. If the Ordinary 
does not consider these new reasons legitimate, he shall without 
further proceedings command the cleric to resume residence 
within the time first fixed, or within an interval to be now 
prescribed, under penalty of deprivation of the parish to be 
incurred ipso facto. If he does not return, the Ordinary shall 
declare him deprived of his benefice; if he returns, the Ordi- 
nary shall give him the same precept spoken of in Canon 2173 
(Canon 2174). 

2007. In neither case (i.e, of a removable or irremovable 
benefice), shall the Ordinary declare a benefice vacant, until he 
has discussed with the examiners the reasons which the cleric 
may have alleged for leaving the benefice, and has established 


394 A PRACTICAL COMMENTARY 


the fact that the cleric could have asked the written permission 
of the same Ordinary (Canon 2175). Recourse to the Apos 
tolic See is available under the general provision of Canon 2146. 


TITLE XXXT 


OF THE MANNER OF PROCEDURE AGAINST CLERICS 
LIVING IN CONCUBINAGE 


2008. The cleric who, contrary to the law of Canon 133, 
keeps under his roof or in any manner associates with a woman 
of suspicious character, shall be admonished by the Ordinary 
to send her away, or not to associate with her further, under 
pain of incurring the penalties which Canon 2359 decrees against 
clerics living in coneubinage (Canon 2176). 

Concubinage properly so-called means illicit and habitual 
sexual intercourse with the same woman (after the manner of 
a wife, as some of the old canonists express it); the fact that 
the woman does not live in the same house is immaterial. Some 
canonists speak of a multer soluta et corrupta, but the Code 
employs the term ‘‘mulier’’ without any qualification. The 
Code makes a cleric liable to the penalties for concubinage, not 
only when actual coneubinage is proved against him, but also 
when there is suspicion of concubinage, and the Ordinary has 
vainly issued a warning to the cleric to remove the woman from 
his house or not to associate with her (cfr. Canon 133). 


EFFECT OF DISOBEDIENCE OF THE WARNING 


2009. If the cleric neither obeys the precept nor answers, 
the Ordinary, after having ascertained he could have obeyed the 
orders or given an answer, shall: 

(1) suspend him a dwinis; 

(2) deprive him at once of the parish, if he is a pastor; 

(3) deprive a cleric who holds a benefice without the care 
of souls of one-half of the income of his benefice, if he within 
two months from the suspension has not amended; after three 
more months, of all the income of his benefice, and after another 
three months of the benefice itself (Canon 2177). 


8 Reiffenstuel, ‘‘ Jus Universum,’’ III, tit. 2, nn. 13-14. 


CANONS 2175-2182 395 


DEFENCE OF THE CLERIC 


2010. It the cleric does not obey the precept of the Ordi- 
nary but gives reasons for excuse, the Ordinary must consult 
two examiners regarding the reasons advanced (Canon 2178). 
If. after consultation with the examiners, the Ordinary does 
not judge the reasons legitimate, he shall as soon as possible 
inform the cleric to that effect, and give him a formal precept 
to obey within a short interval to be defined by the Ordinary 
(Canon 2179). 

2011. If the cleric is a removable pastor and he does not obey 
within the time fixed in the precept, the Ordinary may at once 
coerce him by the penalties stated in Canon 2177. If a cleric 
holding an irremovable benefice does not obey but alleges new 
reasons against the second precept, the Ordinary shall consult 
the same two examiners mentioned in Canon 2178 (Canon 2180). 
If the Ordinary does not consider the new reasons a legitimate 
excuse for evading his precept, he shall again command the 
irremovable cleric to obey within a proper interval and, 
if that time has elapsed without results, he may proceed against 
him with the penalties of Canon 2177 (Canon 2181). Recourse 
of the cleric to the Apostolic See is governed by Canon 2146. 


TITLE XXXII 


OF THE MANNER OF PROCEDURE AGAINST A PASTOR 
NEGLIGENT IN THE FULFILLMENT OF HIS PAS- 
TORAL DUTIES 


2012. If a pastor grossly neglects or violates the pastoral 
duties described in Canon 467 (administering the Sacraments, 
guiding and instructing his people in the spiritual duties), 
Canon 468 (assisting the sick and the dying), Canon 1178 
(guarding the church against profanation, keeping it clean), 
Canons 1330-1332 and 1344 (preaching and teaching of Chris- 
tian doctrine), the bishop shall admonish him, reminding him 
of his strict obligation of conscience and the penalties which 
the law decrees against these offenses (Canon 2182). 

2013. If the pastor does not amend, and the bishop, after 
having consulted two of the examiners and given the pastor an 


396 A PRACTICAL COMMENTARY 


opportunity to defend himself, has found proof that the above- 
mentioned parochial duties have repeatedly been neglected or 
violated in serious matters for a notable length of time without 
any just excuse, he shall rebuke the pastor, and impose on him 
an appropriate penalty in proportion to his guilt (Canon 2183). 

2014. If both the rebuke and the punishment prove unavail- 
ing, the Ordinary, after having proved according to Canon 2183 
the pastor’s culpable perseverance in the neglect or violation 
of the pastoral duties in a grave matter, may at once deprive 
a removable pastor of his parish; he may deprive an irremov- 
able pastor of the income of his benefice, either in whole or in 
part in proportion to the gravity of his guilt, and distribute 
it among the poor (Canon 2184). If the contumacy of the 
irremovable pastor continues and is proved in the manner de- 
seribed above, the Ordinary can remove even an irremovable 
pastor from his parish (Canon 2185). Recourse to the Holy 
See against the final decree of removal is governed by Canon 
2146, 


TITLE XXXTII 


OF THE MANNER OF PROCEDURE FOR INFLICTION OF 
THE SUSPENSION ‘‘EX INFORMATA CONSCIENTIA”’ 


2015. The Ordinary may punish his clerical subjects with 
suspension from office ex informata conscientia, which suspen- 
sion may be either partial or total. This extraordinary remedy 
may not be employed by the Ordinary, if he can without grave 
inconvenience proceed against his subject in the ordinary course 
of law (Canon 2186). 

In order that certain occult crimes might not go unpun- 
ished, the Council of Trent empowered the bishop to forbid 
without judicial procedure clerics to receive higher orders or 
to exercise those received because of secret crimes.® The Sacred 
Congregation of the Propaganda issued an Instruction on the 
suspension ex informata conscientia, October 20, 1884, which, 
except for some slight modifications, has been embodied in the 
following Canons of the Code.?° 


9Sessio XIV, cap. 1, De Reform. 
10 Collectanea de P. F., II, n. 1628. 





CANONS 2183-2188 397 


2016. Neither judicial formalities nor canonical admonitions 
are required for inflicting this suspension; it suffices that the 
Ordinary in compliance with the following Canons issue a decree 
in which he simply declares that he inflicts the suspension 
(Canon 2187). 

2017. The aforesaid decree must be given in writing, unless 
circumstances demand otherwise, and besides the day, month 
and year: 

(1) it shall explicitly state that the suspension is inflicted 
ex informata conscientia or for reasons known to the Ordinary ; 

(2) it shall declare the duration of the penalty, for the 
Ordinary shall abstain from inflicting it perpetually. The sus- 
pension may be inflicted also as a censure, provided in this 
case the reason why the suspension is inflicted is made known 
to the cleric; 

(3) the acts which are forbidden shall be clearly indicated, 
if a partial suspension only is inflicted (Canon 2188). 

For the sake of the public welfare of souls the Church gives 
the Ordinary this unusual power to punish with a very grave 
penalty, without previous admonition, without granting time to 
amend, without being obliged to prove the offense to the culprit, 
and even without the obligation of informing him why he is 
thus punished. Canons 2190-2191 determine the conditions 
under which the suspension ex informata conscientia ean be 
inflicted. The opinion of the Synod of Pistoia that the sus- 
pension ex informata conscientia is null and void was condemned 
by Pope Pius VI as false, pernicious and injurious to the 
Council of Trent.1* 

Canon 2188 states that the Ordinary must declare that the 
suspension is inflicted ex informata conscientia, for otherwise 
the cleric might object to the penalty for lack of the previous 
admonition, which is ordinarily required before a grave penalty 
ean be inflicted (cfr. Canon 2222). 

2018. If a cleric has been suspended from an office in which 
another has to be appointed to take his place (e.g., an admin- 
istrator of a parish to exercise the care of souls), the sub- 
stitute shall receive a salary from the income of the benefice to 
be fixed according to the prudent judgment of the Ordinary. 
If the suspended cleric believes that the salary of the substitute 


11 Denziger, ‘‘Enchiridion’’ (12th ed.), nn. 1549-1550. 


398 A PRACTICAL COMMENTARY 


is too heavy a burden, he can: petition a reduction of the salary 
from the immediate superior, who would be the judge of the 
court of appeal in the ordinary canonical trial (Canon 2189). 
On the court of appeal, efr. Canon 1594. 


CONDITIONS UNDER WHICH SUSPENSION ‘‘Ex INFORMATA 
CONSCIENTIA’’ CAN Br INFLICTED 


2019. The Ordinary who inflicts a suspension ex informata 
conscientia must have gathered by previous investigation such 
proofs as to give him certainty that the cleric has actually 
committed an offense so serious that he must be restrained by 
such a penalty (Canon 2190). 

An occult offense, as described in Canon 2197, n. 4, fur- 
nishes a just and legitimate cause for inflicting the suspension 
ex wmformata conscientia. A notorious offense may never be 
punished with suspension ex informata conscientia. In order 
that a public offense can be punished with suspension ex in- 
formata conscientia, one of the following circumstances must 
necessarily occur: 

(1) if conscientious and responsible witnesses make some 
offense known to the Ordinary, but cannot in any way be in- 
duced to testify in court to the crime, and there are no other 
proofs available by which it can be proved in a judicial trial; 

(2) if the cleric himself by threats or the use of other means 
prevents the institution of a judicial trial against him, or hin- 
ders the completion of a trial commenced; 

(3) if impediments to the institution of a judicial trial and 
the declaration of a sentence arise from adverse civil laws, or 
from fear of grave scandal (Canon 2191). 

2020. Ordinarily the suspension ex informata conscientia can 
be inflicted only for an occult offense. Canon 2197 states that 
an offense is occult, when it is not public. The same Canon 
explains that an offense is public when it has already been 
divulged—that is, a knowledge of it has been spread among 
the public (vulgus)—or if the circumstances of the offense are 
such that it can and must be prudently foreseen that it will 
easily come to the knowledge of the public. If only a few per- 
sons know of the offense, and they are of such a character that 
there is no danger of their publishing the offense, it is still occult. 





CANONS 2189-2193 399 


Now, even if there are only a few persons who have direct 
knowledge (not from hearsay) of the offense, the offense can 
be proved against the cleric, and the Ordinary is not to proceed 
with the suspension ex informata conscientia, if he can without 
ereat inconvenience proceed against him by ordinary trial (cfr. 
Canon 2186). If, however, the few witnesses absolutely refuse 
to testify in court against the cleric (e.g., because their con- 
nection with the offense makes them ashamed to testify, or 
because they are afraid of the cleric or his friends), the Ordi- 
nary can proceed ex informata conscrentia. 

2021. The suspension ex informata conscientia is valid, if 
among several offenses committed by a cleric one only is occult 
(Canon 2192). In this case the Ordinary can at once suspend 
the cleric for reason of the occult offense, provided the condi- 
tions of Canon 2190 as to investigation and proof are observed, 
and he can also proceed against him for the public offenses by 
regular criminal trial. The criminal trial for the public offenses, 
appeal from the sentence, etc., takes its regular course; the 
previous suspension ex informata conscientia is no bar to such 
proceedings. If the cleric is not convicted of the public offenses 
in the criminal trial, the suspension for the occult offense holds 
nevertheless. Formerly the suspension ex informata conscientia 
inflicted for an indefinite length of time was considered per- 
petual and a perpetual suspension ex informata conscientia was 
invalid.127, The Code, however, does not make a perpetual sus- 
pension of this kind invalid, but forbids the Ordinary to inflict 
it perpetually (cfr. Canon 2188). 

2022. It is left to the discretion of the Ordinary to declare 
to or conceal from the cleric the cause or offense for which he 
has suspended him, but, if he thinks it advisable to manifest 
the offense to the cleric, he shall do so with paternal solicitude 
and charity, so that the penalty accompanied with paternal 
admonitions may not only serve for the satisfaction of the 
guilt, but may also lead to the amendment of the offender and 
the elimination of the occasion of sin (Canon 2193). 


12 Sacred Cong. of the Council, December 20, 1873 (Acta 8S. Sedis, 
VII, 569). 


400 A PRACTICAL COMMENTARY 


RECOURSE TO THE HoLy SEE AGAINST THE SUSPENSION 


2023. If the cleric takes recourse to the Holy See against 
the suspension ex informata conscientia, the Ordinary must 
forward to the Holy See the proofs by which it is estabiished 
that the cleric actually committed an offense which may be 
punished with this extraordinary penalty (Canon 2194). 

As the recourse does not suspend the effect of the penalty, 
the cleric must in the meantime abstain from those acts which 
have been forbidden to him by the suspension. This is not 
explicitly stated, and cannot, as Eichmann remarks,'* be proved 
from the Code, but it is a general principle in law that, from 
the disciplinary and administrative acts of the Ordinary, there 
is no appeal, but only from judicial sentences; and the sus- 
pension ex informata conscientia is not a judicial proceeding. 
Besides, the Instruction of the Sacred Congregation of the 
Propaganda, referred to above (n. 2015), explicitly stated that 
the recourse to the Holy See did not relieve from the effects 
of the suspension until the Holy See has rendered its decision. 


ORDINARIES OF RELIGIOUS AND THE SUSPENSION ‘‘EX INFORMATA 
CONSCIENTIA’?’ 


2024. The major religious superiors of exempt clerical or- 
ganizations are Ordinaries in law (cfr. Canon 198), and they 
have over their religious subjects the same jurisdiction as the 
local Ordinary has over the secular clerics of his diocese. The 
Decretals of Pope Gregory IX contain a Decree of Pope Lucius 
III, which attributes to the superiors of regulars the right to 
forbid their subject the reception of higher orders for reason 
of occult offenses.1* The Code speaks of Ordinaries in general 
in the procedure to be observed in the suspension ex informata 
conscientia, and the major religious superiors of exempt clerical 
organizations are included under that term. 

13 Prozessrecht, 269. 


14¢, 5, De Temporibus Ordinationum et Qualitate Ordinandorwm, biel 
aR a be 


Book Five 
OF OFFENSES AND PENALTIES 


PART ONE 


OF OFFENSES 


TITLE I 
OF THE NATURE AND DIVISION OF OFFENSES 


2025. In Canon Law the term ‘‘offense’’ implies an external 
and morally imputable violation of a law, to which at least an 
indeterminate canonical sanction is attached. Unless the con- 
trary appears from the circumstances, what is said about of- 
fenses is to be applied also to violations of a precept to which 
a penal sanction is attached (Canon 2195). 

Not every violation of law is an offense, but only the vio-— 
lation of those laws which have a penalty attached to them. 
That penalty may be either specific (e.g., an excommunication, 
suspension, fine, ete.) or generic (e.g., the Ordinary shall punish 
the transgressor with an appropriate penalty). Precepts of an 
ecclesiastical superior imposed on his subject with the threat 
of penalty in case of disobedience have the effect that the trans- 
gression ordinarily becomes an offense. The penal sanction 
attached to the law or precept takes the place of a warning, 
and, once it has been ascertained that a person is guilty, he may 
be punished (see Canon 2233 on an exception as to censures). 
On the contrary, when no penalty is attached to a law or a 
precept, one cannot ordinarily be punished, unless one has first 
been warned and threatened with a penalty of either latw or 
ferende sententwe. Only in cases where the seriousness of the 


401 


402 A PRACTICAL COMMENTARY 


scandal or the special gravity of the violation of a law or a 
precept which had no penal sanction attached to it demands it, 
can a penalty be inflicted without a warning (cfr. Canon 2222). 

2026. Besides the penal sanction attached to a law, it is 
necessary for the purpose of constituting an offense that the 
person breaking the law commit an external and morally m- 
putable act against the law. The external act is required, for 
purely internal acts cannot be reached by the judicial power. 
‘‘De manifestis quidem loquimur: secretorum autem, et cognitor 
et judex est Deus,’’ says Pope Alexander II. The moral im- 
putability or guilt of the person who violates a law is to be 
determined according to Canons 2199-2211, which are explained 
below. It may be noted here that two terms are used in the 
Code to denote offenses (delictum and crimen), and they are 
interchangeable.? 

The quality or species of an offense is to be determined by 
the object of the law; the quantity or gravity is to be measured, 
not only by the gravity of the particular law which was broken, 
but also by the greater or lesser imputability or damage caused 
(Canon 2196). 


DIVISION OF OFFENSES 


2027. (1) An offense is public, if it has already been di- 
vulged, or if it was committed under or attended by such cir- 
cumstances that its divulgation may and must be prudently 
considered easily possible ; | 

(2) an offense is notorious by notoriety of law after a sen- 
tence of a competent judge which has become irrevocable (res 
judicata), or after a confession of the delinquent made in court 
in the manner described in Canon 1750; 

(3) an offense is notorious by notoriety of fact, if it is pub- 
licly known and committed under such circumstances that it 
eannot be concealed by any subterfuge, nor excused by any 
excuse admitted in law (i.e., both the fact of the offense and 
the imputability or criminal liability must be publicly known) ; 

(4) an offense is occult if it is not public; it is materialiter 
occult, if the offense itself is not publicly known; it is forma- 


1 Decretum Grattant, c. 11, D. 32. 
2 Vermeersch-Creusen, ‘‘Epitome,’’ III, n. 383. 


CANONS 2196-2197 403 


liter occult, if the fact is public, but its imputability is not 
public (Canon 2197). 

2028. The distinction between occult and public offenses is 
explained in general terms by the Code. Canonists have given 
more specific rules by which one may judge whether an offense 
is to be considered publicly known. In the first place, the 
number of people who were witnesses to an offense and the num- 
ber of inhabitants of the place where the offense was committed, 
must be taken into consideration to determine whether an of- 
fense may be said to be public. It is maintained by many 
canonists that at least six persons in a small town or community 
must know of the offense before it can be called public, and 
more persons in proportion to the greater number of inhabit- 
ants before it can be called public in larger places. However, 
canonists consider, not only the relative number in determining 
whether an offense is occult or public, but also the character 
of the perhaps few persons who witnessed the commission of 
the offense—whether they are reserved and taciturn or talkative 
and eager to make known what they have witnessed.? The Code 
calls an offense public when knowledge of it has been spread 
among the people (divulgatum), or when it was committed 
under circumstances which make it practically impossible to keep 
the offense secret. 

2029. In order that a crime may be called public, it is neces- 
sary that the fact be publicly known as a criminal or morally 
imputable act—in other words, that the act is known as a crime. 
Thus, if a person has been dangerously wounded or killed, it 
is not enough that the fact is known, but it must also be known 
that the act was a criminal one, and not committed by acci- 
dent or in self-defence. Is it necessary that the offender be 
known to the public to make the act a public crime? It seems 
so, for the imputability of Canon 2197, n. 4, refers to the 
person of the offender. If the offender does not stand identified 
before the public as the perpetrator of the criminal act, his 
offense is occult—called formaliter oceult in the Code. 

2030. An offense which violates solely the law of the Church, 
is by its very nature subject to punishment by the ecclesiastical 
authority only, although this authority may at times ask the 
assistance of the civil power, when it judges such help necessary 


8 Lega, ‘‘De Delictis et Penis’’ (2nd ed.), n. 244, 


404. A PRACTICAL COMMENTARY 


or opportune. An offense which violates solely a law of the 
civil society, is punished by the civil authority according to its 
own law, except that, in accordance with Canon 120, clerics 
are to be tried in ecclesiastical courts only, and the Church 
also is competent to judge it by reason of sin committed. An 
offense which violates the law of both Church and State may 
be punished by both (Canon 2198). 

If it is conceded that the Church has received from Christ 
authority to make laws for the spiritual guidance of her adher- 
ents and to regulate matters pertaining to the end for which 
He established the Church, it must be conceded also that she 
has the right to judge offenses and punish them, for the legisla- 
tive power is practically useless without the power to enforce 
the law. 


TITLE II 


OF THE IMPUTABILITY OF AN OFFENSE, THE CAUSES 
WHICH AGGRAVATE OR DIMINISH IMPUTABILITY, 
AND THE JURIDICAL CONSEQUENCES OF AN OF- 
FENSE 


2031. The imputability of an offense depends on the evil will 


(dolus) of the delinquent, or on the extent to which his igno- 


rance of the violated law or his omission of proper diligence 
was culpable. Wherefore, all causes which increase, diminish 
or destroy the evil will or culpability, automatically increase, 
diminish or destroy the imputability of the offense (Canon 
2199)" | 

An act (or an omission) prohibited by law, knowledge, and 
free will or deliberation in doing the act (or omitting to act), 
are the principal elements in an offense. There can be no evil 
will or malice in acting against the law, unless a person knows 
the law, or is in culpable ignorance of the law, and has the 
use of his free will to obey or disobey the law. The succeeding 
Canons speak of the various conditions and circumstances which 
may affect the mind or the will in human actions, and conse- 
quently the lability for the same. 

2032. The evil will (dolus), snoken of in Canon 2199, means 
a deliberate will to violate a law, and presupposes on the part 
of the mind a knowledge of the law and on the part of the will 


CANONS 2198-2202 405 


freedom of action. Given the external violation of a law, the 
evil will is presumed in the external forum until the contrary 
is proved (Canon 2200). 

The rule here stated is evidently necessary for the publie 
welfare. The laws are published by the authorities, and it is 
the duty of the subject to inform himself of these laws, for the 
legislator cannot inform each subject individually of the laws 
that have been passed. The authorities presume, therefore, that 
a subject knows the law, and, if he violates it, he is considered 
to have broken it wilfully. If he claims to be free from liability, 
the burden of proof rests with him. 


DISABILITIES AFFECTING THE MIND 


2033. Persons who actually do not enjoy the use of reason 
are incapable of committing an offense. Habitually insane per- 
sons are presumed to be incapable of committing an offense, 
though they have at times lucid moments, or seem to be sane 
in certain of their ratiocinations and actions. An offense com- 
mitted in voluntary drunkenness is not free from some imput- 
ability, but the degree is less than if the same offense had been 
committed by a person in full control of his senses, unless 
drunkenness was brought on deliberately with a view to 
committing the crime or furnishing an excuse for its commission. 
When a law has been broken in involuntary drunkenness, there 
is no imputability at all, if the drunkenness deprived the person 
altogether of the use of reason; the imputability is diminished, 
if the use of reason was aa partially impaired. The same 
applies to other similar mental disturbances. Mental weakness 
diminishes, but does not destroy imputability (Canon 2201). 


IGNORANCE OF THE LAW 


2034. The violation of a law of which one was ignorant is 
entirely non-imputable, if the ignorance was inculpable; if it 
was culpable, the liability varies in proportion to the culpability 
of the ignorance. Ignorance of the penalty only does not destroy 
liability, but it mitigates it somewhat. What is said of igno- 
rance, applies also to inadvertence and error (Canon 2202). 

As ignorance, inadvertence, error, excitement, depression, 
and great mental or bodily sufferings disturb the mind and will, 


406 A PRACTICAL COMMENTARY 


and frequently impede perfect deliberation in human acts, they 
may be pleaded as mitigating circumstances. In reference to 
ignorance more specific rules are given in Canons 16 and 2229 
(cfr. Vol. I, n. 14, and below, n. 2068). 


OMISSION OF DUE CARE 


2035. If a person violates a law by the omission of proper 
diligence or care, the liability is diminished to a degree to be 
determined from the circumstances at the prudent discretion 
of the judge. If the offender foresaw the infraction of the law 
and nevertheless neglected to use those precautions which any 
prudent person would have employed, the guilt is practically 
equivalent to deliberate violation of the law (dolus). An acci- 
dental case which could not be foreseen, or, if foreseen, could 
not be avoided, excuses from all lability (Canon 2203). 


LIABILITY oF MINorRS 


2036. Unless the contrary is apparent, minority diminishes 
the liability, and in a progressively greater degree as it ap- 
proaches infancy (Canon 2204). 

Minors are persons under twenty-one years of age (cfr. 
Canon 88). On the exemption of minors who have not attained 
the age of puberty from penalties late sententiw, cfr. Canon 
2230. 


LIABILITY IN CASE OF FORCE OR FEAR 


2037. Physical violence which deprives a person of all frec- 
dom of action absolutely excuses from liability. Grave fear, 
even though only relatively such, necessity, and even great in- 
convenience, excuse as a rule from all liability, if there is ques- 
tion of purely ecclesiastical laws. If, however, an act is intrin- 
sically evil, involves contempt of the faith or of ecclesiastical 
authority, or works to the detriment of souls, excuses based on 
grave fear, necessity and great inconvenience diminish, but do 
not destroy liability. Legitimate self-defence against an unjust 
aggressor, provided due moderation is observed, excuses from 
all guilt; if the bounds of due precaution are exceeded in re- 
pelling an aggressor, the aggression only diminishes liability. 
Provocation also diminishes liability (Canon 2205). The prin- 


CANONS 2203-2207 A407 ° 


ciples here enunciated by the Code are the same as in the former 
Canon Law. 


LIABILITY FoR Acts DONE IN PAssIon 


2038. If passion was voluntarily and deliberately aroused or 
fostered, it rather increases the imputability of the offense; 
otherwise, it diminishes liability to a more or less degree in 
proportion to the heat of passion, which, if it precedes and 
impedes all deliberation of the mind and consent of the will, 
destroys all liability (Canon 2206). 

The passions which interfere with fully deliberate human 
acts are intense or overpowering feelings (e.g., anger, hatred, 
envy, revenge, etc.). If these feelings are freely and deliberately 
aroused, or, when spontaneous in the beginning, are voluntarily 
fostered, one becomes responsible for the consequences of the 
passions, for one uses them as tools to commit an offense. If 
the passions arise spontaneously and become an incentive to an 
offense, one has the duty to repress them, but, if one commits 
an offense in the heat of spontaneous passion, one’s liability is 
lessened in proportion to the intensity of the passion, because 
the law takes into consideration the difficulty of overcoming an 
intense spontaneous passion. If the passion is so sudden and 
intense that at the moment of the offense one’s control over 
mind and will was completely lost, there is no liability for the’ 
offense, because it is not a human act but rather an act of a 
momentarily insane person.* 


SPECIAL CIRCUMSTANCES WHICH AGGRAVATE OFFENSES 


2039. Besides other aggravating circumstances, an offense is 
made worse: (1) by the greater dignity of the person who 
commits the offense, or against whom the offense is committed ; 
(2) by the abuse of authority or office for the purpose of com- 
mitting an offense (Canon 2207). 

A recidivus in the terminology of law is a person who, after 
condemnation, again commits an offense of the same kind and 
under such conditions and circumstances (especially of time) 
as give good reason to conjecture that the person stubbornly 


4Sole, ‘‘De Delictis et Ponis,’’ n. 37; Pesch, ‘‘Institutiones Psy- 
chologice,’’ ITI, 402. 


408 A PRACTICAL COMMENTARY 


perseveres in his evil disposition. A person who repeatedly 
offends even against different kinds of laws also increases his 
liability (Canon 2208). 


LIABILITY OF ACCOMPLICES IN OFFENSES 


2040. (1) Persons who conspire to commit an offense and 
also physically concur in the execution of the same, are all 
euilty in the same degree, unless circumstances increase or 
diminish the liability of some individual. 

(2) In an offense which of its nature requires an accomplice, 
every party is equally guilty, unless the contrary appears from 
the circumstances. 

(3) Not only the person who orders (mandans) the commis- 
sion of an offense, and who is therefore the principal author 
of it, but also all who induce another or concur in its commis- 
sion in any manner, contract the same liability, all other things 
being equal, as the perpetrator of the offense himself, if the 
offense would not have been committed without their help. 

(4) If the assistance of the accomplices only facilitated the 
offense which would have been committed even without their 
help, they incur a lesser liability. 

(5) A person who ceased to codperate in the crime by timely 
and complete withdrawal of his influence or participation, is 
freed from all liability, though the executor of the offense, for 
other reasons proper to himself, perpetrated the misdeed; if he 
did not completely withdraw his influence, his retraction dimin- 
ishes but does not entirely cancel lability. 

(6) A person who codperates in an offense by neglect of his 
office only, is liable in proportion to the obligation which he 
had in virtue of his office to prevent the offense. 

(7) Praise of the accomplished offense, participation in its 
fruits, hiding or sheltering of the offender, and other acts done 
after an offense has been fully accomplished, may constitute 
new offenses, if in law these actions are forbidden under penalty ; 
but, unless one had made an agreement with the offender about 
these acts (e.g., to share the spoils, to hide or shelter him, etc.) 
before the execution of the offense, one incurs vo liability for 
the offense itself (Canon 2209). 

The Code divides the persons concerned in an offense into 


CANONS 2208-2209 409 


these groups: (1) the principals (nn. 1-2); (2) necessary 
accomplices, liable like the principals (n. 3); (3) accomplices 
with limited liability (n. 4); (4) negative accomplices (n. 6) ; 
(5) accomplices after the fact (n. 7). 

2041. Persons who plot and scheme for the commission of 
an offense are, aS a rule, all equally guilty, and, when one of 
them executes the plotted crime, each of the conspirators becomes 
equally liable for it, unless cireumstances prove that some con- 
spirators were more or less guilty than others. If a erime is 
of such a nature that it cannot be perpetrated without an ac- 
complice (e.g., fornication, adultery, simoniacal contract or other 
forbidden agreements), each party is equally liable for the 
crime, unless circumstances prove the contrary (e.g., if a party 
was coerced by violence or fear to consent to fornication, adul- 
tery, ete.). 

2042. The mandans is one who either commands another 
over whom he has authority, or commissions a person as his 
agent to perpetrate an offense. He is considered the principal 
author of the offense. Other accomplices in an offense are liable 
in the same degree as the principal, if the offense would not 
have been committed without their codperation. The law of 
the Code is fair, for, if the participation in an offense’ is of 
such a character that the offense would not have been committed 
without the participation, the accomplice is equally the cause 
of the offense. When one’s participation is the cause of the 
offense, cannot be determined by a general criterion, but must - 
be judged from the circumstances in each case. Formerly many 
<anonists and moralists enumerated a number of codperators in 
the hexameter verse: 


Jussio, consilium, consensus, palpo, recursus; 
Participans, mutus, non obstans, non manifestans. 


They also gave rules for determining the varying liability of 
the various accomplices. Other canonists, however, preferred 
to determine the liability in the same way as the Code now 
does.° 

2043. Accomplices with limited liability are persons who par- 
ticipate in an offense remotely, and are thus not an efficacious 
cause of the offense, or if their participation is proximate, it is 


5 Lega, ‘‘De Delictis et Pcenis,’’ n. 54, 


410 A PRACTICAL COMMENTARY 


not so important that the offense would have been prevented 
if they had refrained from taking part in its commission. 

2044. The negative accomplices are persons who are bound 
by their office to prevent the offense and neglect to do so. The 
term ‘‘office’’ in reference to negative cooperation means any 
position, or employment, or state of life, which imposes the 
obligation of preventing an offense (e.g., parents may be liable 
for the offenses committed by minor children, if carelessness in 
their supervision is proved against them; masters may become 
liable for the wrongs of their servants; principals for the wrongs 
of their agents, ete.). 

2045. The accomplices after the commission of an offense are 
not liable except when, before the commission of the misdeed, 
they agreed with the perpetrator to shelter, shield him, ete., and 
thereby caused or at least facilitated the offense. The accom- 
plices after the fact commit an offense, if the law forbids this 
collusion under penalty (e.g., in the case of excommunicate 
vitandi, in the ease of clerics excommunicated, interdicted, sus- 
pended, by sentence of the ecclesiastical court, cfr. Canon 2338). 


LEGAL CONSEQUENCES OF AN OFFENSE 


2046. From the commission of an offense arises: 

(1) a penal action for the declaration (in penalties late 
sententie) or imposition (in penalties ferend@ sententie) of the 
penalty decreed in law, and for demanding satisfaction (e.¢., 
for the scandal given) ; 

(2) a eivil action for the reparation of losses incurred, it 
the offense caused losses to another. 

Both actions, criminal and eivil, are to be conducted in 
accordance with Canons 1552-1959. The same judge who tries 
the criminal action can at the instance of the injured party 
try and decide the civil action (Canon 2210). 

2047. All the principals and accomplices enumerated in 
Canon 2209, nn. 1-3, are jointly and severally obliged to pay 
the expenses and repair the damages caused to any persons by 
the offense, though the judge has condemned them only to pay 
a proportionate share (Canon 2211). As all these persons are 
equally liable for the offense, as stated in Canon 2209, each one 
is liable for the entire damage caused; and, if some of the prin- 


CANONS 2210-2213 411 


cipals or accomplices do not pay their share, the others are 
obliged to pay the full amount. 


TITLE III 


OF ATTEMPTED OFFENSES 


2048. Whosoever institutes or omits actions which of their 
very nature lead to the commission of an offense, but does not 
complete the offense either because he changes his mind or because 
its completion is impossible owing to the insufficiency or inade- 
quacy of the means, is guilty of an attempted offense. 

If all those actions were begun or omitted which would 
naturally lead to the commission of an offense, and would have 
sufficed to perpetrate it if another cause, beyond the will of 
the offender had not interfered, the attempt is called a frustrated 
offense. 

A person who tries unsuccessfully to induce another to com- 
mit an offense, is guilty of an attempted offense. If the law 
decrees a special penalty for an attempted offense, the attempt 
constitutes a true offense (Canon 2212). 

9049. An attempted offense induces liability which increases 
in proportion as it approaches nearer to the consummation of 
the offense, although the liability is always less than for the 
consummated offense. A frustrated offense is more culpable than 
a simple attempted offense. A person who of his own accord 
desisted after he had begun the commission of an offense, is 
free from all liability, if no damage was caused nor scandal 
given by the attempt (Canon 2213). 

Canon 2213 treats of liability in the external forum, not of 
the forum of conscience. In conscience and before God a per- 
son may be fully guilty of the sin committed by the violation 
of a law, though he never went so far as to begin the action 
forbidden by law. 


PART TWO 


OF PENALTIES 


Srction I 
OF PENALTIES IN GENERAL 


2050. The Church has the innate and proper right, inde- 
pendent of all human authority, to punish her guilty subjects 
with both spiritual and temporal penalties. The admonition 
of the Council of Trent, Sessio XIII, cap. 1, De Reformatione, 
shall however be kept in view: from which it is evident that the 
Church does not favor nasty and rash use of extremely severe 
penalties and censures. The Council reminds the Ordinaries to 
consider their subjects as children and brethren in Christ and 
urges them to try as long as possible, by patience and kindness, to 
influence them to strive after virtue and to desist from vice 
(Canon 2214). 


TITLE IV 


OF THE DEFINITION, SPECIES, INTERPRETATION AND 
APPLICATION OF PENALTIES 


2051. An ecclesiastical penalty is a deprivation of some tem- 
poral or spiritual benefit inflicted by the legitimate authority 
on the delinquent for his correction and in punishment of an 
offense (Canon 2215). 

In the Church offenders are punished: 

(1) with corrective (medicinales) penalties or censures; 

(2) with vindicative penalties; 

(3) with penal remedies and penances (Canon 2216). 

The corrective (medicinal) penalties or censures are inflicted 
chiefly for the correction of the offender; if he amends and 

; 412 


CANONS 2214-2216 413 


gives satisfaction to the authorities who imposed these penalties, 
the offender is to be released from them, and for this reason 
they are not inflicted for a definite period of time. If a sus- 
pension or interdict is imposed for a definite period of time, it 
ceases to be a censure in the proper sense of the term, and 
becomes a vindicative penalty; excommunication cannot be im- 
posed after the manner of a vindicative penalty (cfr. Canon 
2255). Vindicative penalties (also called punitive) are, as the 
name suggests, punishments for the disturbance of ecclesiastical 
discipline caused by the offense; they are usually imposed for 
a definite period of time or for ever, and the fact that the 
offender amended and showed good-will does not entitle him 
to be released from the vindicative penalties. Penal remedies 
and penances are milder forms of penalties (cfr. Canons 2306— 
2313). 


TERMINOLOGY IN THE MATTER OF PENALTIES 


2052. A penalty is called: 

(1) determinate or specific, if the law or precept defines 
it specifically ; indeterminate or general, if the law leaves it to 
the discretion of the judge or the superior to fix the penalty, 
either ordering or permitting him to punish the transgression 
of a law with appropriate penalties ; 

(2) late sententie, if a specific penalty is attached to a hes 
or a precept in such a manner that it is incurred ipso faciv 
by the commission of the offense; ferende sententia, if it must 
be inflicted (i.e., the law commands that it be inflicted) by the 
judge or superior ; 

(3) a jure, if a specified penalty is fixed by the law itself, 
whether latw or ferende sententie; ab homine, if the penalty 
is inflicted either by way of special precept or by a condemna- 
tory judicial sentence, even though the penalty is fixed by law; 
wherefore, a penalty ferend@ sententiw attached to a law is a 
penalty a jure only before a condemnatory sentence is issued, 
but it becomes afterwards a penalty both a jure and ab homine, 
although it is considered only as a penalty ab homine. 

A penalty is always understood to be ferendw sententie 
unless the law explicitly states that it is latw sententia, or that 


414 A PRACTICAL COMMENTARY 


it is incurred ipso facto, or ipso jure, or unless other similar 
terms are employed (Canon 2217) .° 


INTERPRETATION OF PENAL LAWS 


2053. In the application of penalties the punishment should 
be in just proportion to the offense, due regard being had to 
the degree of liability and to the scandal or damage caused. 
Wherefore, attention must be paid not only to the subject mat- 
ter and gravity of.a law, but also to the age, knowledge, educa- 
tion, sex, state of life, and mental condition of the delinquent, 
to the dignity of the person against whom the offense was com- 
mitted or who committed it, the purpose intended, the place 
and time of the offense, whether it was committed in the heat 
of passion or for reason of grave fear, whether the delinquent 
repented of his misdeed and tried to prevent its evil effects, 
and other similar circumstances. 

Not only the circumstances which excuse from all lability 
but also those which excuse from grave guilt, excuse also from 
any penalty whether latw or ferende sententwe even in the 
external forum, provided the excuse is proved in the external 
forum. 

Mutual injuries extinguish each other, unless one party de- 
serves condemnation on account of the greater gravity of the 
injury done by him. In the latter case the fact that the injury 
was mutual may on occasion mitigate the penalty (Canon 2218). 

2054. In penalties the milder interpretation is to be applied. 
Even when one doubts whether a penalty inflicted by a ecompe- 
tent superior is just, the punishment must nevertheless be ac- 
cepted in both the external and internal forum, except in a 
ease of appeal in suspensivo (i.e, an appeal which suspends 
the sentence). A penalty is not to be extended from person to 
person, nor from one ease to another, though there is the same 
or even a greater reason for holding a person guilty; if, huw- 
ever, several persons participated in the commission of a single 
offense, the precept of Canon 2231 must be observed (Canon 
2219). 

The Code here repeats the principles of the law of the 
Decretals in the interpretation of penalties: Odva restringi et 


6 Sole, ‘‘De Delictis et Panis,’’ n. 71, 


CANONS 2217-2221 A415 


favores convenit ampliari; In penis benignior est mnterpretatio 
facienda.? If the material facts are doubtful, or if the terms 
of the law do not with certainty cover a certain case, the of- 
fender is not liable for the penalty of law. If a competent 
superior has imposed a penalty, and the subject doubts whether 
the penalty is justified, he is obliged to submit to it both in 
conscience and in the external forum, for the stability of ecclesi- 
astical discipline and the maintenance of law and order demand 
that the action of the superior be not frustrated by doubts of 
his subject over the justice of the superior’s action.° 


TITLE V 
OF SUPERIORS WHO HAVE COERCIVE POWER 


2055. Superiors who have authority to make laws or to im- 
pose precepts, may also attach penalties to the law or precept. 
Persons who possess judicial power only, can merely impose 
by the process of law the penalties legitimately attached to a 
law or precept. The vicar-general has no power to inflict pen- 
alties unless that power is conferred on him by special mandate 
(Canon 2220). If the vicar-general is at the same time officials 
or judge of the diocesan Curia, he has power to try cases and 
inflict the penalties of the law. Ordinarily he is not to be the 
judge of the diocesan Curia (cfr. Canon 1573). 

2056. Persons who have legislative power may, within. the 
limits of their jurisdiction, enforce with a proper penalty—or 
inerease the statutory penalty attached to—not only their own 
laws and those of their predecessors, but also, for reason of 
peculiar circumstances, the divine law and ecclesiastical laws 
of a superior authority, provided the latter laws are in force in 
their territory (Canon 2221). | 

Though Canon 2221 states that an inferior authority may 
increase the penalty attached to a law of a superior authority, 
if special circumstances necessitate it, Canon 2247 declares that 
the Ordinaries cannot attach a censure reserved to themselves 
to laws to which a censure reserved to the Holy See is attached 
(efr. Canon 898; above, Vol. I, n. 809). 


7Regule Juris in Libro Sexto Decretalium, 15 and 49. 

8 Sole, ‘‘De Delictis et Poenis,’’ nn. 75-80. 

9 Decretales Greg. IX, ¢. 5. De Clerico Exoommunicato, etc., lib. V, 
Lh tei 


416 A PRACTICAL COMMENTARY 


PUNISHMENT FOR VIOLATION oF LAWS wHIcH Have No 
PENAL SANCTION 


2057. Even though there is no penalty attached to a law, 
the legitimate superior may, nevertheless, even without previous 
threat of penalty, punish its transgression with some just pen- 
alty, if the scandal given or the special gravity of the violation 
demands it. Otherwise, the delinquent may not be punished 
unless he has first been admonished and threatened with a pen- 
alty late or ferende sententie in case of transgression, and 
nevertheless violates the same law. 

Even though it is only probable that a person committed an 
offense, or even though criminal action against one who is known 
with certainty to have committed an offense is barred by pre- 
scription, the legitimate superior has not only the right but the 
duty to refuse to promote (to higher orders) a cleric of whose 
fitness he is not certain, and, for the sake of avoiding scandal, 
to prohibit a cleric the exercise of the sacred ministry, or 
even remove him from office in accordance with the rules of 
law. All these proceedings do not have the nature of a penalty 
(Canon 2222). 

2058. Ordinarily no penalty is to be inflicted for the viola- 
tion of the divine or ecclesiastical law, if the law does not decree 
a penalty. The offender is first to be warned and threatened 
with a penalty, and, if he disregards the warning and threat, 
proceedings can be instituted to inflict the penalty. Only in 
cases where great scandal or the special gravity of the violation 
of a law without a penal sanction demands immediate action 
may the superior punish without previous warning. In laws to 
which a penal sanction is attached, the law itself serves as a 
warning, and, if such a law is violated, proceedings for pun- 
ishment may be immediately taken; the formalities of the crimi- 
nal procedure must be observed (cfr. Canons 1933-1959) .* 
Canon 2195 stated that there is no offense properly so called, 
unless the law or precept which was violated had a penal sanc- 
tion attached to it; consequently, there can be no criminal action 
and punishment. Since, however, the spiritual welfare of the 
Church demands reparation of scandal and atonement of serious 
misconduct, the law gives to the ecclesiastical superiors author- 


10 Sole, ‘‘De Delictis et Penis,’’ nn. 85-91. 


CANONS 2222-2223 417 


ity to take immediate action in ease of such scandal or mis- 
conduct. 


RULES BY WHICH THE JUDGE oR SuPERIOR Must Br GUIDED 
IN THE IMPOSITION OF PENALTIES 


2059. In imposing the penalties, the judge may not increase 
a specific penalty, unless extraordinary aggravating circum- 
stances demand it. If the law in stating a penalty ferendea 
sententie employs optional terms (e.g., prudenti Ordmaru ju- 
dicio determinanda, ad arbitrium Ordinaru pro gravitate culpu 
puniatur, ete.), it is left to the discretion and conscience of 
the judge to inflict the penalty, or, if the penalty is specific, to 
moderate it. 

If, however, the law employs words implying a precept to 
impose a penalty, the penalty of the law is ordinarily to be 
imposed, but it is left to the conscience and discretion of the 
judge or superior: 

(1) to delay the imposition of the penalty to a more op- 
portune time, if it is judged that greater evils may follow from 
too hasty punishment of the delinquent ; 

(2) to refrain from inflicting the penalty if the delinquent 
has shown complete amendment and has repaired the scandal, 
or if he has been or will be sufficiently punished by the civil 
authorities ; 

(3) to moderate a specific penalty or to employ instead some 
penal remedy or penance, if there is some circumstance which 
considerably diminishes his liability, or if, though the offender 
has amended or been sufficiently punished by the civil authori- 
ties, the judge or superior deems it advisable to add some mild 
punishment. 

It is, as a rule, left to the discretion of the superior to declare 
a penalty late sententiw; but he must issue the declaratory 
sentence, if an interested party demands it, or if the public 
welfare requires it (Canon 2223). On the right of parties to 
denounce a delinquent, cfr. Canon 1935. 

2060. Generally speaking, there are as many penalties as 
there are offenses. If, however, on account of the great number 
of offenses there would be too great an accumulation of pen- 
alties to be inflicted, it is left to the discretion of the judge 


418 A PRACTICAL COMMENTARY 


either to impose the severest of all the penalties incurred, adding 
if necessary some penance or penal remedy, or to reduce the 
various penalties equitably with due regard to the number and 
gravity of the offenses. If a distinct penalty is decreed in law 
for an attempted offense and another for its actual perpetra- 
tion, and the offender has admitted the perpetration, he is to 
be punished only with the penalty decreed for the accomplished 
offense (Canon 2224). 

2061. If a penalty is declared or inflicted by judicial sen- 
tence, the precepts of the canons relative to the pronouncement 
of a judicial sentence shall be observed. If, however, a penalty 
of either latw or ferende sententiw has been ordained by way 
of special precept, it shall ordinarily be declared or inflicted in 
writing or before two witnesses, and the reasons for the penalty 
shall be indicated, without prejudice to the precept of Canon 
2193 regarding the suspension ex informata conscientia (Canon 
2225). 

2062. In penalties a jure the criminal procedure must be 
followed: investigation to collect proofs (which is omitted if 
the offense is notorious or altogether certain), bill of accusa- 
tion by the promotor justitie (prosecuting attorney), and sum- 
mons of the offender. If he admits the offense, he may ordi- 
narily be dismissed with a rebuke; but in certain offenses (cfr. 
Canon 1918) a mere rebuke is not sufficient. If he denies the 
offense and desires to defend himself, the judge shall according 
to his discretion allow him sufficient time to prepare his proots 
and to present witnesses, while the prosecutor meanwhile pre- 
pares to prove the offense. The accused must have an attorney 
for his defense, who is appointed by the court, if not designated 
by the defendant; after the hearing of the evidence, the publi- 
cation of it follows, then the declaration that case is closed (i.e., 
no further evidence can be offered) ; time is given for the prepa- 
ration of the written defence, which is exchanged between the 
parties (here the prosecutor and the accused) and the time set for 
reply; a final oral argument follows, if the judge sees fit to per- 
mit it; finally the case goes to the judge or judges, who within a 
reasonable time issue the sentence in accordance with the rules of 
Canons 1868-1877. In all judicial acts a notary, as clerk of 
the court, records the proceedings. 

In the imposition of penalties attached to a special precept 


CANONS 2224-2226 419 


of an ecclesiastical superior, no judicial proceedings are required, 
but the principles of elementary justice must be observed— 
namely, there must be sufficient proof of the violation of the 
precept, opportunity must be given to the accused to defend 
himself, and all circumstances material to the fact must be 
duly considered. 


TITLE VI 


OF THE PERSONS SUBJECT TO THE COERCIVE POWER 


2063. Persons who are bound by a law or a precept are 
liable for the penalty attached to the law or precept, unless 
they are explicitly exempted. If a later penal law changes a 
former law, and if a person has already committed an offense 
before the new law was made, the law which is more favorable 
to the offender is to be applied. If the new law abolishes the 
former law or the penalty only, the penalty ceases at once, 
except in the case of a censure already contracted. The penalty 
once incurred follows the offender wherever he goes, even after 
the superior has gone out of office, unless the contrary is ex- 
plicitly stated (Canon 2226). 

2064. The general laws of the Church exert their binding 
force everywhere; the particular laws of dioceses, provinces, 
and countries bind those who have a domicile or quasi-domicile 
in the place (efr. Canons 13-14; above, Vol. I, n. 12). Among 
the persons exempted from the penalties of law are the Car- 
dinals and bishops in accordance with Canons 2227. On the 
exemption of exempt religious from the penalties of diocesan 
laws, cfr. Volume I, n. 534.77 

2065. The penalty follows the person wherever he goes. The 
fact that a penalty was incurred for the violation of a diocesan 
law, and that the person who incurred the penalty changes his 
domicile, does not relieve him from the penalty. The fact that 
the superior who by precept inflicted a penalty dies, or other- 
wise goes out of office, does not cancel the penalty, if it was 
inflicted by a legitimate document or before two witnesses (cfr. 
Canon 24). A penalty inflicted by a superior ad beneplacttum 
nostrum expires when the superior goes out of office, for that 


11 Lega, ‘‘De Delictis et Pcenis,’’ n. 119. 


420 A PRACTICAL COMMENTARY 


clause makes the penalty a temporary one (i.e., for the duration 
of office of the superior).1?' The reservation of censures and 
absolution from them are treated in Canons 2245-2254. 

2066. The Roman Pontiff alone can inflict on, or declare a 
penalty against the persons enumerated in Canon 1557, § 1. 
Cardinals are not subject to the penal law, unless they are 
explicitly mentioned, nor are bishops subject to penalties of 
suspension and interdict late sententiw (Canon 2227). 

2067. A penalty fixed by law is not incurred unless the 
specific offense has been fully committed in accordance with the 
proper meaning of the terms of the law (Canon 2228). The 
evil intention alone to violate a law to which a penalty is at- 
tached does not suffice to make a person lable, but the execu- 
tion of the precise act (or the omission) stated in the law is 
necessary to incur the penalty (cfr. Canon 19; above, Vol. I, 
Tela. 


IGNORANCE AND OTHER MENTAL CONDITIONS AS EXCUSES FROM 
PENALTIES 


2068. Affected (pretended) ignorance of either the law or 
of its penalty only does not excuse from any penalties lata 
sententiw, even though the law contains the terms mentioned 
in the following paragraph (Canon 2229, §1). 

If the law has the words, presumpserit, ausus fuerit, screnter, 
studiose, temerarte, consulto egerit, or other similar terms which 
demands full, knowledge and deliberation, any diminution of 
liability, either on the part of the intellect or on the part of 
the will, exempts from the penalties late sententie (Canon 
2229, § 2). 

If the law does not have these terms: 

(1) crass or supine ignorance of the law or of the penalty 
only does not exempt from any penalty late sententiw; igno- 
rance which is not erass or supine, excuses from the medicinal, 
but not from the vindicative penalties latw sententie; 

(2) drunkenness, omission of due care, mental weakness, and 
heat of passion do not excuse from penalties late sententie, if 
notwithstanding the diminution of the lability the action was 
eravely sinful; 


12 Sacred Cong. of the Propaganda, October 20, 1884 (Collectanea de 
Pe kL oo Gen). 


CANONS 2227-2229 421 


(3) grave fear does not exempt from penalties late sen- 
tentrw, if the offense entails contempt of the faith or of ecclesi- 
astical authority, or public injury of souls (Canon 2229, § 3). 

Though the offender is excused from the censures late 
sententiw when his ignorance is not crass or supine, he may 
nevertheless be punished, if the case calls for it, with some other 
appropriate penalty or penance (Canon 2229, § 4). 

2069. As every subject is under obligation to inform him- 
self of the laws which concern him, ignorance of the law is no 
excuse. But, since there can be many circumstances which make 
the ignorance more or less culpable, the Code distinguishes be- 
tween the various degrees of ignorance. The terms, ignorantia 
affectata, crassa, supina, graviter seu leviter culpabilis, have 
been discussed and defined by canonists and moralists long be- 
fore the promulgation of the Code. Affected ignorance is never 
admitted as an excuse. Crass and supine ignorance excuse from 
penalties latw sententiw in laws which require full knowledge 
and deliberation; in other laws crass and supine ignorance da 
not excuse from such penalties. It is a matter of debate among 
canonists whether gravely sinful ignorance is to be called crass 
(or supine), but the Code seems to imply that such ignorance 
is not crass or supine, for it states that ignorance which is not 
crass or supine excuses from medicinal penalties (i.e., censures), 
but not from vindicative penalties late sententie. Now, no 
penalty at all is incurred unless there is grievous guilt in the 
transgression of a law; if, then, the law of the Code grants 
mercy to ignorance, it must mean ignorance which is even gravely 
sinful, provided it is not grossly culpable so as to deserve the 
name of crass or supine ignorance.*® Canon 2202 stated, as we 
saw above (n. 2034), that ignorance of the penalty only does 
not excuse from lability, but this general rule is somewhat 
modified in Canon 2229, § 3, n. 1, which exempts from medicinal 
penalties late sententiw, even though one knew the law but 
was ignorant of the penalty, provided the ignorance is not crass 
or supine, and by Canon 2229, § 2, in cases when full knowl- 
edge of the law and the penalty is required. 

In discussing the excuses from penalties, the Code speaks 


13 Wernz, ‘‘ Jus Decretalium,’’ VI, n. 21; Lega, ‘‘De Delictis et Penis,’’ 
n. 42, (6); Sole, ‘‘De Delictis et Penis,’’ n. 114; Vermeersch-Creusen, 
‘‘Epitome,’’ IIT, n. 422. 


422 A PRACTICAL COMMENTARY 


only of penalties latw sententiew, for in the case of penalties 
ferende sententre (which do not take effect against the offender 
unless the ecclesiastical judge or superior declares sentence 
against him), the law leaves it to the discretion and conscience 
of the judge or superior to examine into and make allowance 
for mitigating circumstances. 


PUNISHMENT OF YouTHS Wuo Have Not REACHED THE AGE 
OF PUBERTY 


2070. Children who have not yet attained the age of puberty 
are excused from the penalties latw sententwe, and should be 
punished with educational corrections rather than with censures 
and other graver vindicative penalties. Persons of the age of 
puberty who induce children under the age of puberty to break 
the law, or who cooperate with them in the manner specified 
in Canon 2209, §§ 1-8, incur the penalty decreed by the law 
(Canon 2230). 

The Code settles the controversy among canonists who wrote 
before the promulgation of the Code as to whether children 
who were very near to the age of puberty (1.e., over ten and a 
half years) incurred the penalties late sententie.* The Code 
does not free them from the penalties ferende sententiew, but 
the judge or superior must make allowance for tender age (cfr. 
Canon 2204). 


PENALTIES OF ACCOMPLICES 


2071. If several persons concurred in the perpetration of an 
offense, though the law speaks of one only, all who codperate 
in the manner specified in Canon 2209, §§ 1-3, are liable for 
the same penalty, unless the law explicitly states the contrary ; 
other accomplices, however, do not incur the same penalty, but 
shall be punished with some other just penalty at the discretion 
of the superior, unless the law provides a special penalty for 
such accomplices (Canon 2281). 


AUTOMATIC EFFECT OF PENALTIES LATZ SENTENTLE 


2072. A penalty latw sententiw, whether medicinal or vin- 
dicative, automatically (¢pso facto) binds the offender in both 


14 Sole, ‘‘De Delictis et Peenis,’’ n. 120. 


CANONS 2230-2233 423 


the internal and external forum, if he is conscious of his of- 
fense. However, before a declaratory sentence has been issued 
against the offender, he is excused from the observance of the 
penalty, whenever he cannot observe it without loss of good 
reputation, and, subject to the precept of Canon 2223, § 4, no 
one can demand that he shall observe the penalty in the external 
forum, unless the offense is notorious. When a declaratory sen- 
tence is issued, the penalty has a retroactive effect to the moment 
when the offense was committed (Canon 2232). 

The retroactive effect may become important, for example, 
in offenses to which ipso facto loss of the income of one’s bene- 
fice is decreed by law. Since it is a great hardship for a delin- 
quent whose offense is still occult (e.g., an excommunication or 
a suspension incurred by an occult offense) to observe the pen- 
alty, if he thereby publicly betrays his guilt or arouses suspicion 
against himself, Canon Law does not demand of the culprit to 
execute the penalty on himself, but permits him to act in public 
as though he had not incurred the penalty, until the competent 
authority has issued the declaratory sentence. 


MANNER OF INFLICTING PENALTIES 


9073. No penalty can be inflicted unless it is proved with 
certainty that the offense has been committed, and that prosecu- 
tion is not barred by legitimate prescription. Though this be 
certain, the penalty of a censure cannot be inflicted, unless the 
delinquent has first been rebuked and admonished to recede 
from his contumacy in accordance with Canon 2242, $3, and 
such time for repentance has been given him as the judge or 
superior deems proper in the particular case. If the delinquent 
remains obstinate, the censure may be inflicted (Canon 2233). 

In this Canon the question of inflicting penalties ferenda 
sententiw is considered, for penalties latw sententie are auto- 
matically contracted by the offense. As a rule, the commission 
of an offense must be certain before a penalty can be inflicted. 
Canon 2222 describes the measures which may be taken against 
a cleric whose offense is only probable, and against a cleric 
whose certain offense is barred from prosecution by prescrip- 
tion. Under certain circumstances, penalties other than cen- 
sures may be inflicted without previous warning (clr. Canon 


424. A PRACTICAL COMMENTARY 


2222). The Committee for the Authentic Interpretation of the 
. Code declared that the violation of a special precept which was 
imposed with the threat of a censure ferende sententie may 
be punished with the censure as soon as the violation is proved 
without the necessity of a new admonition.’® 

2074. The person who has committed several offenses shall 
not only be punished more severely, but shall also be subjected 
to surveillance or other penal remedy, if in the discretion of 
the judge the case demands it (Canon 2234). 

2075. Unless they are punished by law as distinct offenses, 
frustrated offenses or attempted offenses may be punished with 
an appropriate penalty in proportion to the gravity of the guilt, 
subject to the provision of Canon 2213 for cases in which all 
liability for attempted offenses ceases (Canon 2235). If a frus- 
trated or attempted offense is punished in law with a specific 
penalty, the judge ordinarily must impose the specified penalty 
(efr. Canon 2223). 


TITLE VII 


OF THE REMISSION OF PENALTIES 


2076. The remission of a penalty by absolution (in the case 
of censures) or by dispensation (in the case of vindicative pen- 
alties) may be granted only by him who has inflicted the penalty, 
or by his competent superior or successor, or by him to whom this 
faculty has been committed. A person who can exempt others 
from the observance of a law, can also remit the penalty at- 
tached to that law. A judge who ex officio imposes a penalty 
ordained by a superior, cannot remit it after he has imposed 
it (Canon 2236). 

Censures are inflicted ton the purpose of overcoming the 
contumacy of the offender. If he amends and gives satisfactory 
signs of his sincere sorrow for his violation of the law and of 
his readiness to make satisfaction, the purpose of the penalty 
has been accomplished, and he is to be absolved from the cen- 
sure. Vindicative penalties are imposed irrespective of the of- 
fender’s sorrow for the offense and of his amendment; they are 
punishments pure and simple for the expiation of an offense, 


15 July 14, 1922 (Acta Ap. Sedis, XIV, 530), 


CANONS 2234-2237 425 


and last either for ever or for a specified period of time, unless 
the competent authority grants the favor of a dispensation from 
the penalty. The ecclesiastical superior is obliged by law to 
erant absolution from censures as soon as the offender amends 
and gives due satisfaction, but, in the case of vindicative pen- 
alties, it is left to the prudent judgment of the superior to 
concede or refuse dispensation from the penalties to an amended 
offender. If one has authority to dispense from the observance 
of a law, one can also remit the penalty attached to the law in 
accordance with the Regula Juris in Sexto, 35: ‘‘Plus semper 
in se continet quod est minus.’’ The penalty is an accessory or 
secondary part of a law. With reference to the power of a judge 
in imposing penalties, cfr. Canon 2223. 


FACULTIES OF THE ORDINARY IN PENALTIES OF THE COMMON 
LAW 


2077. In public cases the Ordinary may remit the penalties 
late sententie ordained by the common law except the following: 

(1) cases litigated in court; 

(2) censures reserved to the Apostolic See; 

(3) penalties which incapacitate the offender from obtaining 
benefices, offices, dignities, functions in the Church, or an active 
and passive vote; also penalties which deprive the offender of 
an active and passive vote, or which entail perpetual suspen- 
sion, infamy of law, or deprivation of the right of patronage 
or of a privilege or favor granted by the Apostolic See (Canon 
2237, §1). 

In occult cases, without prejudice to the concessions of 
Canons 2254 and 2290, the Ordinary may either personally or 
through another remit the penalties latw sententi@ ordained by 
the common law, with the exception of the censures reserved to 
the Apostolic See specialissimo or speciali modo (Canon 
2237, § 2) 

A ease is in litigation as soon as the offender has been legiti- 
mately summoned to appear in court, either in a criminal trial 
to answer the charge made against him by the prosecutor, or 
in a civil trial to answer for the damages caused by an offense 
(cfr. Canon 1725). The Code gives faculty to the Ordinaries 
(cfr. Canon 198 on the persons comprehended by that term) 


426 A PRACTICAL COMMENTARY 


to remit penalties late sententiw only; the penalties ferende 
sententie are considered as penalties ab homine (cfr. Canon 
2217), which can be remitted only by the Ordinary whose court 
imposed the penalty, or the Ordinary to whose court the 
case came by appeal.1® With reference to public and occult 
cases, cfr. Canon 2197 (above, n, 2028). In public cases the 
power of the Ordinary in remitting penalties late sententia 
decreed by the common law is far more restricted than in occult 
cases. Note that the Ordinary cannot, except by special indult, 
absolve from censures reserved to the Holy See (whether simply, 
or specially, or most specially reserved), if the case is public. 

2078. The remission of a penalty extorted by violence or 
grave fear is invalid in law (Canon 2238). The law of the 
Decretals had the same rule in reference to violence or fear.1? 
It is not certain whether a distinction between unjust and justi- 
fied threat is admissible in Canon 2238. Some commentators 
are of the opinion that the remission of the penalty is null and 
void, even though it is obtained through fear which the subject 
had a right to create, e.g., by threatening the lower superior to 
denounce him to the higher authorities; 18 others hold that justi- 
fied threat (and consequent fear) does not invalidate the remis- 
sion or pardon of a penalty.? 

2079. A penalty may be validly remitted whether the of- 
fender be present or absent. The remission can be either abso- 
lute or conditional, and in the external forum or in the internal 
only. Though a peualty may be remitted orally, it is proper 
that its remission should be given in writing, if it has been 
imposed by a written instrument (Canon 2239). In reference 
to the prescription of penal actions, the law of Canon 1703 is 
to be observed (Canon 2240). 

16 Lega, ‘‘De Delictis et Penis,’’ n. 131; Sole, ‘‘De Delictis et Peenis,’’ 
n. 147; Ayrinhae, ‘‘ Penal Legislation, ? nn. 67- 70; Eichmann, ‘« Strafrecht, & 
70-73: Chelodi, ‘‘Jus Penale,’’ n. 30; Haring, ‘<Katholisches Kirchen- 
recht, 7D 932. 

17 Tiber Sextus, c. unic., De iis que vi metusve causa fiunt, lib. I, tit. 20. 

18 Sole, ‘‘De Delictis et Ueda S fee Wi iged ba be 


19 Vermeersch- Creusen, ‘‘ Epitome, di IIT, n. 432; Ayrinhac, ‘‘ Penal 
Legislation,’’ n, 71. 


CANONS 2238-2242 427 


Section ITI 
OF PENALTIES IN PARTICULAR 


TITLE VIII 


OF MEDICINAL PENALTIES OR CENSURES 


CHAPTER I 


OF CENSURES IN GENERAL 


2080. A censure is a penalty by which a baptized person 
who is delinquent and obstinate is deprived of some spiritual 
goods or of temporal goods annexed to the spiritual, until he 
recedes from his obstinacy and is absolved. Censures, especially 
those late sententiw and most of all excommunication, should 
be inflicted only with moderation and great caution (Canon 
2241). 

As censures deprive the offender of spiritual goods, and are 
a very serious punishment, the Council of Trent 2° as well as 
the Code warn the Ordinaries against the rash infliction of 
censures—especially excommunication, the most severe of the 
censures. 

2081. Only offenses which are external, grave, consummated 
or complete, and combined with obstinacy, are punished with 
censures. A censure may be inflicted even on delinquents whose 
identity is unknown (Canon 2242, §1). 

When there is question of censures ferende sententie, a 
person is considered contumacious who, notwithstanding the 
admonitions spoken of in Canon 2233, does not desist from the 
offense, or refuses to do penance for the offense and make due 
reparation for the damages and scandal caused thereby. ‘To 
incur a censure late sententie, the transgression of a law or 
a precept to which a penalty late sententiw is attached suffices, 
unless the offender is excused from the penalty by a legitimate 
cause (Canon 2242, § 2). 

A person is considered to have desisted from his obstinacy, 
when he has truly repented of his offense, and has at the same 


20 Sessio XXV, cap. 3, De Reform. 


428 A PRACTICAL COMMENTARY 


time made proper satisfaction for the damages and scandal 
caused, or has at least earnestly promised to do so. The judg- 
ment on the sincerity of the repentance, or the sufficiency of 
the satisfaction, or the sincerity of the promise, rests with the 
one from whom absolution from the censure is requested (Canon 
2242, § 3). 

2082. With reference to the nature of an offense by which 
a law is violated, cfr. Canon 2195 (above, n. 2025). The vio- 
lation must be grave to be punished with a censure, and the 
gravity is judged by the external act, not by the interior dis- 
position of the mind. If the external act violates the law seri- 
ously, culpability is presumed in the external forum until excuse 
from grave guilt is proved (cfr. Canon 2200). Contumacy of 
the offender is implied in the deliberate violation of a law to 
which a censure late sententiw is attached, and therefore the 
censure is incurred immediately on the breaking of such a law. 
In the violation of laws to which a censure ferende@ sententic 
is attached, the offender is not considered necessarily contu- 
macious, and, therefore, cannot be punished by the superior with 
the censure until the latter has admonished him, and the admoni- 
tion has gone unheeded. 


IMPOSITION OF CENSURES BY JUDICIAL SENTENCE 


2083. Censures inflicted by judicial sentence take effect as 
soon as they are pronounced, and an appeal in devolutivo only 
is granted (i.e., the censure is not suspended by recourse to 
the higher superior). Similarly, from censures inflicted by way 
of precept, only a recourse in devolutivo is allowed. 

Appeal or recourse from a judicial sentence or a precept 
threatening censures (even late sententiw) not yet contracted, 
suspend neither the sentence (or precept) nor the censures, if 
matters are involved in which the law does not admit appeal 
or recourse with suspensive effect. If the matter is one in which 
the law grants appeal or recourse in suspensivo, the censures 
are suspended, but the obligation remains to observe what has 
been commanded by the judicial sentence (or the precept), 
unless the offender appeals or has recourse, not only from the 
penalty, but from the sentence (or precept) itself (Canon 2243). 

2084. The distinction between an appeal in suspensivo and 


CANONS 2242-2244 429 


in devolutivo is explained by Canon 1889 (above, n. 1809). 
If a censure is threatened by judicial sentence (or by precept) 
but has not yet been incurred, appeal or recourse against the 
threatened censure or against the sentence (or precept) together 
with the censure suspends the censure or the sentence (or pre- 
cept) and censure, if it is a matter in which appeal or recourse 
m suspensivo is permitted. There are, however, matters in 
which no recourse in suspensivo against sentence (or precept) 
is permitted, but merely recourse in devolutivo—e.g., paternal 
precepts given in a canonical visitation (cfr. Canons 345, 5138), 
recall of the faculty to preach (efr. Canon 1340), division, union, 
or transfer of parishes (cfr. Canon 1428), removal or transfer 
of pastors, punishment of clerics for violating the law of resi- 
dence, of clerics guilty of concubinage, of pastors who neglect 
their parochial duties, and suspension ex informata conscientia 
(cfr. Canon 2146). Generally speaking, whenever the ecclesi- 
astical superior acts or gives orders in the course of his admin- 
istrative duties, no recourse against his acts or his orders in 
suspensiwo is permitted.?? 


MULTIPLICATION OF CENSURES 


2085. Not only censures of different species, but also those 
of the same species, may be multiplied in one and the same 
offender (Canon 2244, §1). 

Censures late sententte are multiplied in the following ways: 
(1) if various offenses, to each of which a censure is attached, 
are committed either by the same or by distinct actions; (2) if 
the same offense to which a censure is attached is committed 
repeatedly in such a manner that there are several distinct 
offenses; (3) if an offense which is punished with diverse cen- 
sures by various superiors is committed once or repeatedly 
(Canon 2244, § 2). 

Censures ab homine are multiplied, if each of several pre- 
cepts or several sentences, or several distinct parts of the same 
precept or sentence, inflict a censure (Canon 2244, § 3). 

Canon 2224 stated that ordinarily there are as many pen- 
alties as there are offenses committed. If a person strikes a 


21 Bened. XIV, Const. ‘‘Ad Militantis,’’ March 30, 1742; Gasparri, 
‘“Fontes Cod. Jur. Can.,’’ I, 723. 


430 A PRACTICAL COMMENTARY 


cleric at various times, he incurs an excommunication each time; 
the same is true of all censures late sententiw, which are multi- 
plied as often as the offense is repeated. The censures ab homine 
(i.e., a judicial sentence or a precept of the superior by which 
the subject is ordered to do or omit something under pain of 
incurring tpso facto a censure in case of wilful disobedience) 
are not multiplied in the same manner as the latw sententie 
censures a jure (for example, there is no multiplication of the 
censure by repeated violation of the same precept), but are 
multiplied only in the manner pointed out in §3. If several 
superiors (e.g., the Holy See, the local Ordinary, a Provincial 
or National Council) have ordained the same censure against 
one and the same offense (e.g., marriage before a non-Catholic 
minister of religion), the censure is not multiplied, for Canon 
2244, § 2, n. 3, states that the censures are multiplied if diverse 
censures are imposed on the same offense by various superiors. 


DIVISION OF CENSURES AND THEIR RESERVATION 


2086. Censures are either reserved or non-reserved (Canon 
2245, § 1). 

Censures ab homine are reserved to him who inflicted the 
censure or issued the sentence, or to his competent superior, or 
his successor, or his delegate. Of the censures reserved a jure, 
some are reserved to the Ordinary, and others to the Apostolic 
See (Canon 2245, § 2). 

Of the censures reserved to the Apostolic See, some are 
reserved simpliciter, others speciali modo and other specialis- 
sumo modo (Canon 2245, § 3). 

A censure latw sententiw is not reserved, unless this is ex- 
plicitly stated in the law or precept, and in ease of a doubt in 
law or in fact (dubiwm juris vel facti) the reservation does not 
take effect (Canon 2245, § 4). 

The distinction between penalties ab homine and a jure is 
defined by Canon 2217 (cfr. above, n. 2052). If an Ordinary 
inflicts a censure by way of special precept, or throngh his 
court imposes a penalty ferend@ sententiew by the so-called con- 
demnatory sentence, nobody else than that Ordinary, or his dele- 
gate, or his successor in office, or his higher superior, can free 
the subject from the censure, 


CANONS 2245-2247 431 


2087. A censure should not be reserved unless the peculiar 
gravity of the offenses and the necessity of maintaining ecelesi- 
astical discipline and correcting the morals of the faithful more 
effectively demand the reservation. A reservation is to be inter- 
preted strictly. Reservation of a censure which prevents the 
reception of the sacraments implies the reservation of the sin, 
to which the censure is attached. If, however, a person is ex- 
cused from the censure, or has been absolved from it, the reser- 
vation of the sin ceases altogether (Canon 2246). The strict 
interpretation means that the law imposing a censure is to be 
taken in the proper sense of the words employed without ex- 
tending the meaning of its terms. If it is doubtful whether 
the action of the offender is covered by the law, or whether or 
not an excuse saves him from incurring the censure, the of- 
fender is not to be considered censured. 

2088. If a censure is reserved to the Apostelie See, the Ordi- 
nary cannot attach to the same offense another censure reserved 
to himself (Canon 2247, § 1). 

The reservation of a censure in some particular territory 
has no force outside the limits of that territory, even if the 
person who incurred the censure goes outside the territory pre- 
cisely for the purpose of obtaining absolution. A censure ab 
homine, however, is reserved everywhere, so that the censured 
person cannot be absolved anywhere without the proper faculties 
(Canon 2247, § 2). 

If a confessor, in ignorance of the reservation, has absolved 
a penitent from the censure and sin, the absolution from the 
censure is valid except in the case of censures ab homine and 
censures reserved to the Apostolic See specialissimo modo (Canon 
2247, § 3). 

Though the same offense may be punished with a different 
censure by various superiors—e.g., the local Ordinary and the 
Holy See (cfr. Canon 2244, § 2, n. 3)—Canon 2247, § 1, restricts 
this power of inferior Ordinaries if the Holy See has attached 
to an offense a censure reserved to itself. It is not certain 
whether the law of an Ordinary is invalid, if, despite the pro- 
hibition, he attaches to a papal reserved censure a censure re- 
served to himself; it seems, however, that the term ‘‘nequit’’ 
expresses equivalently the nullity of the law of an Ordinary. 
Persons who incurred a reserved censure ordained by particular 


432 A PRACTICAL COMMENTARY 


law can go outside the territory where that law is binding, and 
be absolved from the censure, even though they go outside the 
territory purposely to get absolution. In the former law such 
persons could not be absolved if they went outside the territory 
for the sole purpose of evading the reservation. On the absolu- 
tion from reserved sins, efr. Canon 893 (Volume I, nn. 799, 815). 

2089. Any censure once contracted cannot be removed except 
by legitimate absolution. Absolution cannot be denied when- 
ever the offender ceases to be obstinate, as declared in Canon 
2242, §3. The one who absolves from the censure may, if the 
case demands it, impose an appropriate vindicative penalty or 
penance for the expiation of the offense. If a censure has been 
removed by absolution, it revives only in cases where a penance 
or other obligation has been imposed under penalty of relapse 
into the censure and has not been performed (Canon 2248). 

The censure once incurred binds the offender, even though 
the law is changed later on, and the penalty abolished (cfr. 
Canon 2226). Canon 2236 shows what persons can dispense 
from vindicative penalties. A confessor who has no jurisdic- 
tion in the external forum cannot impose a vindicative penalty 
for the expiation cof an offense, but only a penance proportioned 
to its gravity. In some cases the law itself declares that the 
person absolved from a censure again incurs it through failure 
to fulfill a condition (efr. Canon 2254, §1). To grant absolution 
from a censure under condition that, if the obligation or penance 
imposed is not fulfilled, the penitent shall fall into the same cen- 
sure, is equivalent to a precept imposed under threat of a censure 
late sententie. Consequently, only a superior who has power 
to attach a censure to his precept can absolve under such a 
condition, unless the law gives the confessor ay to absolve 
under that condition.” 

2090. If a person has incurred several censures, he may be 
absolved from one, while the others remain. The petitioner for 
absolution must indicate all cases from which he desires abso- 
lution, for otherwise the absolution is valid only for the case 
he mentioned. If, however, the absolution is general, though 
the petition referred to one particular case only, it is valid also 
for those cases which were concealed in good faith, with the 


22 Sole, ‘‘De Delictis et Ponis,’’ n. 152; Vermeersch- Creusen, ‘‘ Epi- 
tome,’’ III, n. 447. 


CANONS 2248-2250 433 


exception of censures reserved to the Holy See specialissimo 
modo: even a general absolution is of no avail for censures 
concealed in bad faith (Canon 2249). 

Canon 2249 is important in the ease of the multiplication 
of censures mentioned in Canon 2244. The rule of Canon 2249 
has reference to censures inflicted a jure, for censures ab homine 
are always reserved to the superior who inflicted the same (cfr. 
Canon 2245, §2). If a person who has incurred several cen- 
sures asks for absolution, but by mistake forgets to mention 
one or other of the censures, and absolution is given to him 
in the general form ‘‘ab omnibus censuris,’’ he is free from all 
censures, provided the one absolving had authority to absolve 
from all the censures with which the offender was burdened. 
Censures reserved to the Holy See specialissimo modo and those 
concealed in bad faith are not included in this liberal concession 
of Canon 2249. 


RELATION BETWEEN ABSOLUTION FROM SIN AND FROM CENSURE 


2091. In the case of a censure which does not prevent the 
reception of the sacraments, the censured person who is prop- 
erly disposed and desists from his contumacy can be absolved 
from his sins, while the censure remains (Canon 2250, § 1). 

In the case of a censure which prevents the reception of the 
sacraments, the censured person cannot be absolved from the 
sins until he has been first absolved from the censure (Canon 
2250, § 2). 

Absolution from a censure in the sacramental forum is in- 
eluded in the usual form of absolution from sins given in the 
ritualistic books; in the non-sacramental forum, absolution from 
a censure may be given in any form, but for the absolution 
from excommunication it is proper to use, as a rule, the formula 
contained in these same books (Canon 2250, § 3). 

Excommunication and personal interdict entail the prohibi- 
tion to receive the sacraments, until absolution has been ob- 
tained from these censures. If the priest has no faculty to 
absolve from these censures, he cannot absolve from the sins by 
which one incurred the censures. If there is question of sus- 
pension, and the suspended cleric is sorry for his sins and will- 
ing to make amends for the violation of law, the confessor can 


434 A PRACTICAL COMMENTARY 


absolve him from his sins, even though he does not have the 
faculty to absolve him from the suspension. 


ABSOLUTION FROM CENSURES IN THE EXTERNAL AND INTERNAL 
ForuM 


2092. If absolution from a censure is given in the external 
forum, it holds good for both the external and the internal 
forum; if it is given in the internal forum, the person who 
obtained such an absolution may, if no scandal is caused thereby, 
conduct himself as if absolved even in his actions of the external 
forum. The censure, however, may be enforced by the superiors 
of the external forum, and the subject is bound to obey until 
he has been absolved in the external forum, unless the granting 
of absolution in the internal forum is proved, or is at least 
legitimately presumed in the external forum (Canon 2251). 

The Code here repeats the former law on the effect of an 
absolution from a censure in the internal forum.”? If a con- 
fessor asks the Ordinary for faculties to absolve a person, and 
in the concession of the faculties there is no express limitation 
to the internal forum, the faculties are considered granted for 
both forums (cfr. Canon 202; above, Volume I, n. 156). 


ABSOLUTION FROM CENSURES IN DANGER OF DEATH 


2093. Persons who in danger of death are absolved from a 
censure ab homine or from a censure reserved specialissimo 
modo to the Apostolic See by a priest who has no special faculty, 
are after their recovery obliged under pain of relapse into the 
censure to have recourse to the person who inflicted the censure, 
if there is question of a censure ab homie. In the case of a 
censure a jure, recourse must be had to the Sacred Penitentiary, 
or to a bishop or other ecclesiastic who has the faculty to absolve, 
as declared in Canon 2254, §1. The censured persons must 
obey the orders of the absolving authority (Canon 2252). 

Canon 882 states that in danger of death every priest can 
absolve from all sins and censures (cfr. above, Volume I, n. 787). 
If it is a censure ab homine (cfr. Canon 2217), or a censure 
reserved to the Holy See specialissimo modo, and the priest had 


23 Lega, ‘‘De Delictis et Peenis,’’ n, 125, 


CANONS 2251-2253 435 


no faculties to absolve from them outside the case of danger of 
death, the penitent after recovery must submit himself to the 
competent authority not to obtain absolution (for that he has 
received), but to make satisfaction for his offense to the ecclesi- 
astical authority. If he neglects to have recourse, he again 
incurs the censure from which he was absolved in danger of 
death. The manner of having recourse is specified in Canon 
2254. If a person in danger of death has been absolved from 
censures other than those mentioned in Canon 2252, he has no 
obligation of submitting his case again after recovery. 


ABSOLUTION FROM CENSURES OUTSIDE THE DANUER OF DEATH 


2094. Even outside the danger of death, absolution may be 
given : 

(1) from a non-reserved censure by any confessor in the 
sacramental forum; outside the sacramental forum by those 
persons who have jurisdiction over the offender in the external 
forum ; 

(2) from a censure ab homine by the person to whom the 
censure is reserved in accordance with Canon 2245, §2. He 
ean grant the absolution even though the offender has trans- 
ferred his domicile or quasi-domicile to another place (i.e., out- 
side the territory of the superior who inflicted the censure ab 
homine) ; | 

(3) from a censure reserved a jure by the person who or- 
dained the censure, or him to whom it is reserved, and their 
successors or competent superiors, or their delegates. Where- 
fore, every Ordinary can absolve his subjects from a censure 
reservata E'ptscopo or Ordinario (reserved to the bishop or to 
the Ordinary), and a local Ordinary ean absolve even strangers; 
absolution from a censure reserved to the Apostolic See may 
be received from the same Holy See and from others who have 
obtained faculty from the Holy See to absolve. For cases 
reserved simpliciter, the general faculty to absolve from papal 
reserved cases suffices; for cases reserved speciali modo, a special 
faculty is needed; for cases reserved specialissimo modo a most 
special faculty is required, subject in all three instances to the 
regulations of Canon 2254 for urgent cases (Canon 2253). 

From non-reserved censures a jure, the confessors can absolve 


436 ‘A PRACTICAL COMMENTARY 


in sacramental confession; outside sacramental confession those 
persons only can grant absolution who have jurisdiction over 
the offender in the external forum. Ordinarily confessors and 
pastors have no jurisdiction in the external forum, but they 
may be delegated by the Ordinary. Eichmann asserts that the 
pastors have jurisdiction in the external forum over their par- 
ishioners, and can absolve them in the external forum,” but 
that opinion is not endorsed by the majority of the commenta- 
tors on the Code.2° In occult cases the Ordinaries have facul- 
ties, in virtue of Canon 2237, to absolve from the censures 
reserved to the Holy See sumpliciter. 


ABSOLUTION FROM CENSURES IN URGENT CASES 


2095. In urgent cases—that is to say, in cases in which the 
censures late sententie cannot be observed exteriorly without 
danger of grave scandal or infamy, or if it is hard for the 
penitent to remain in the state of mortal sin for the time neces- 
sary to obtain apsolution from the competent superior—every 
confessor can in the sacramental forum absolve from the cen- 
sures, no matter how they are reserved. He must, however, 
impose on the penitent the burden to take recourse within one 
month under the penalty of relapse into the censure. The 
recourse is to be made at least by letter and through the con- 
fessor, if it can be done without grave inconvenience, without 
mentioning the name of the penitent, and directed to the Sacred 
Penitentiary or to the bishop or other superior who has the 
faculty to release from the censure, and the penitent is obliged 
to obey the orders of the superior (Canon 2254, § 1). 

Even after he has received absolution (from a non-privileged 
confessor) as stated above, and has had recourse to the superior, 
the penitent is not forbidden to approach another confessor 
who has the faculty to absolve, and, confessing again at least 
the sin to which the censure is attached, to receive absolution. 
When he has received absolution, he shall accept the injunc- 
tions of the confessor, and shall not afterwards be obliged to 


24 Strafrecht, 87. 

25 Augustine, ‘‘Commentary,’’ VIII, 155; Haring, ‘‘Grundziige des 
kath. Kirchenrechts,’’ 310, 939; Poschl, ‘‘Kurzgefasstes Lehrbuch des 
kath. Kirchenrechts,’’ 19. 


CANON 2254 437 


accept other injunctions given by the superior to whom he had 
taken recourse by letter (Canon 2254, § 2). 

If in some extraordinary case the recourse is morally impos- 
sible, the confessor himself can grant absolution without the 
obligation of recourse, except in the case of absolving his own 
accomplice in a sin of impurity (cfr. Canon 2367). The con- 
fessor shall enjoin on the penitent what the law requires in the 
respective case (e.g., restitution, safeguards against relapse, 
etc.), and impose an appropriate penance and satisfaction for 
the censure under condition that the penitent shall relapse into 
the censure if he does not within an appropriate space of time 
to be determined by the confessor do penance and make satis- 
faction (Canon 2254, § 3). 

2096. The recourse to the Sacred Penitentiary, or to another 
ecclesiastical superior who has faculties to absolve from the 
censures reserved to the Holy See, is to be made ordinarily 
through the confessor writing in the name of the penitent. If 
the confessor cannot write for the penitent (e.g., because he 
will have no opportunity of seeing the penitent again), and the 
penitent himself can write, the latter is not excused from the 
recourse. If a penitent has been absolved from a censure re- 
served to the Holy See and the confessor has written for the 
penitent, the latter may nevertheless approach another confessor 
who has a special faculty to absolve from the censure, and who 
can impose the mandata (or special injunctions) regarding the 
things that the penitent is to do or avoid. The ease is thereby 
closed, and, when later on the answer to the first confessor’s 
letter comes, the penitent is not obliged to accept the mandata 
of the Sacred Penitentiary or the bishop. 

If the recourse is morally impossible (e.g., because the con- 
fessor cannot write for the penitent and the penitent himself 
cannot write), and if it is very difficult for the penitent to con- 
fess again his offense to a superior or a confessor who has faculty 
to absolve from the censure, any confessor can absolve him and 
impose the mandata, penance and satisfaction, under pain of 
relapse into the censure, if the penitent has not complied with 
the orders of the confessor Within the time specified. What 
constitutes a moral impossibility to make the recourse, must be 
judged by the confessor, who alone knows the circumstances of 
the individual case. 


438 A PRACTICAL COMMENTARY 


9097. The faculty of every confessor to grant absolution in 
urgent cases extends to all censures late sententiw reserved by 
law (quoquo modo reservate) : it is immaterial whether they are 
reserved by the common or by particular law, and whether 
they are reserved to the Holy See simpliciter, speciala or spe- 
cialissimo modo, or to the Ordinary. The censures ab homine 
are excluded from the faculties of Canon 2254.”° 


CuHaptTer II 


OF CENSURES IN PARTICULAR 


2098. The censures are as follows: (1) excommunication, 
(2) interdict, (3) suspension. An excommunication can affect 
physical persons only ; wherefore, if it is inflicted ona moral body, 
it is understood to affect those individuals who codperated in 
the offense. Interdict and suspension can be inflicted also on 
a community as a moral person. HExcommunication and inter- 
dict may be inflicted on lay persons as well as on clerics; sus- 
pension is inflicted on clerics only; an interdict may be inflicted 
not only on persons, but also on places. An excommunication 
is always a censure; interdict and suspension can be either 
censures or vindicative penalties, but in case of doubt they are 
presumed to be censures (Canon 2255). 

The three censures are enumerated in the law of the De- 
eretals,27 and restated by the Code. That excommunication 
cannot be inflicted on all persons who constitute a legal body, 
put only on those individuals of that body who are personally 
euilty of the offense, is a rule taken from the law of the De- 
eretals.28 The codperation which entails an ecclesiastical pen- 
alty must be gravely sinful (cfr. Canon 2218). If a legal body 
is punished with interdict or suspension, the innocent members 
of the body are not personally interdicted or suspended, but 
the acts of the body as an organization are affected ; if, however, 
the penalty is expressly inflicted on both the legal body and the 
guilty individuals, the latter are also personally interdicted or 

26 Holy Office, June 23, 1886 (Collectanea de P. F., TI, n. 1658); Holy 
Office, June 16, 1897 (Collectanea de P. F., II, n. 1971); Holy Office, 
August 19, 1891 and March 30, 1892 (Collectanea de P. F., II, nn. 1764, 
1788). Vermeersch-Creusen, ‘‘Epitome,’’ III, n. 454; Augustine, ‘*Com- 
mentary,’’ VIII, 158-162. 


27 Decretales Greg. IX, ce. 20, De verborum significatione, lib. V, tit. 40. 
28 Liber Sextus, c. 5, De sententia excommunicationis, lib. V, tit. 11. 


CANONS 2255-2258 A439 


suspended (cfr. Canons 2274 and 2285). A personal penalty is 
not inflicted without personal guilt. 

2099. In the following Canons, (1) the term divine offices 
implies those functions of the power of orders which, by the 
institution of Christ or the Church, are ordained for divine cult, 
and can be performed by clerics only; (2) by the term of 
legal ecclesiastical acts are to be understood: holding the 
office of administrator of ecclesiastical goods, acting as judge, 
auditor, relator (proponent), defensor vincult, promoter of jus- 
tice (prosecutor) and promoter of the faith, notary and chan- 
cellor, cursor (messenger), apparitor (summoner), attorney and 
procurator in ecclesiastical cases; the office of sponsor in Bap- 
tism and Confirmation; voting in ecclesiastical elections, and 
the exercise of the right of patronage (Canon 2256). 


ARTICLE I.—OF EXCOMMUNICATION 


2100. Excommunication is a censure by which one is ex- 
cluded from the communion of the faithful with the conse- 
quences enumerated in the following Canons, which consequences 
are inseparable. It is also called anathema, especially when 
inflicted with the solemnities described in the Ponttficale Ro- 
manum (Canon 2257) .?° 

Some excommunicated persons are vitandi, others toleratr. 
Nobody is a vitandus, unless (1) he is excommunicated by name 
by the Apostolic See, (2) the excommunication is publicly pro- 
claimed, and (38) in the decree or sentence it is expressly stated 
that he must be avoided. The only case in which one becomes 
an excommunicatus vitandus by the very fact of committing 
the crime is stated in Canon 2348, §1, n. 1 (Canon 2258). 

Canon 2258 contains a notable change of the former law in 
reference to the excommunicatus vitandus. A Decree of the 
Sacred Congregation of the Inquisition, January 9, 1884, stated 
that persons punished with excommunication by name through 
a declaratory or condemnatory sentence of the Supreme Pontiff 
or of the bishop became excommunicati vitandi.2° Under the 
law of the Code the three conditions enumerated in Canon 2258 
are necessary to render an excommunicated person a vitandus. 

2101. Every excommunicated person is deprived of the right 


29 Lega, ‘‘De Delictis et Poenis,’’ n. 153 sqq. 
30 Lega, op. cit., n. 156. 


440 A PRACTICAL COMMENTARY 


to assist at the divine offices, but not at the preaching of the 
‘word of God. If an excommunicatus toleratus assists passively, 
it is not necessary to expel him; a vitandus should be expelled, 
or, if he cannot be expelled, the divine service must be stopped, 
provided it can be done without grave inconvenience. From 
active assistance, which entails some participation in celebrating 
the divine offices (services), not only an excommunicatus vt- 
tandus is to be barred, but also every excommunicated person 
whose excommunication was inflicted by a declaratory or con- 
demnatory sentence, or whose excommunication is otherwise 
notorious (Canon 2259). The sentence here spoken of makes 
the excommunication notorious by notoriety of law; the public 
knowledge of the excommunication makes it notorious by notori- 
ety of fact (cfr. Canon 2197). 


EXCOMMUNICATION AND RECEPTION OR ADMINISTRATION OF 
SACRAMENTS AND SACRAMENTALS 


2102. An excommunicated person may not receive the Sacra- 
ments; after a declaratory or condemnatory sentence he may 
not receive even the sacramentals (Canon 2260, §1). 

With regard to the ecclesiastical burial of excommunicated 
persons, the precepts of Canon 1240 (cfr. above, n. 1268) are 
to be observed (Canon 2260, § 2). 

2103. An excommunicated person may not licitly consecrate 
or administer the Sacraments except in the following cases 
(Canon 2261, §1). 

Without prejudice to the rule of §3 of this Canon, the 
faithful may for any just reason ask the Sacraments and sacra- 
mentals from an excommunicated person especially if there is 
no other minister available, and the excommunicated person at 
their request may minister to them without any obligation to 
inquire into the reason for the request (Canon 2261, § 2). 

From a minister who is an excommunicatus vitandus, or 
who has been excommunicated by a declaratory or condemna- 
tory sentence, the faithful may ask for sacramental absolution 
in accordance with Canons 882 and 2252 only in danger of 
death. Even in the case of danger of death, it is forbidden 
to approach such a minister for the other Sacraments and sacra- 
mentals, unless no other minister is available (Canon 2261, § 3). 


CANONS 2259-2262 441 


This concession to the faithful does not entitle the minister 
to disregard the penalties of the excommunication which he has 
incurred except in those instances in which the faithful request 
him to administer the Sacraments to them. Sole ** and other 
commentators maintain that an implied petition of the faithful 
for the Sacraments also entitles the minister whose excommuni- 
cation is occult to say Mass (e.g., on Sunday at the hours when 
the people expect Mass to be said) and administer the Sacra- 
ments. There is no need of bringing this case under Canon 
2261, §2, for Canon 2232 rules that a person under secret 
censure need not betray himself by abstaining from acts for- 
bidden by excommunication under circumstances which endan- 
ger his reputation. Canon 2261, §2, permits the faithful to 
ask the Sacraments from an excommunicated minister, though 
his excommunication is publicly known, but they may not re- 
quest him, except in danger of death, if the minister is an 
excommunicatus vitandus, or if excommunication has been im- 
posed on him by a declaratory or condemnatory sentence. 


DEPRIVATION OF OTHER SPIRITUAL FAVORS 


2104. An excommunicated person does not share in the in- 
dulgences, suffrages, or public prayers of the Church (Canon 
2262, § 1). | 

It is, however, not forbidden: (1) that the faithful pray 
for an excommunicated person privately; (2) that the priests 
apply Mass for him privately, provided scandal is avoided ; but, 
if he is a vitandus, Mass may be applied for his conversion 
only (Canon 2262). Canon 809 (cfr. Volume I, n. 711) dis- 
cusses the question of application of Mass for excommunicated 
persons. 


DEPRIVATION OF RicgHt To Exercise LegaL EccLEstAstTicaL 
ACTS, OFFICES AND FUNCTIONS, JURISDICTION 


2105. An excommunicated person is forbidden to exercise 
legal ecclesiastical acts (cfr. Canon 2256) within the limits 
defined in law. He cannot be plaintiff in ecclesiastical trials 
except in so far as Canon 1654 permits, and he is forbidden to 


81 Sole, ‘‘De Delictis et Panis,’’ n. 220. 


442 A PRACTICAL COMMENTARY 


discharge ecclesiastical offices and duties and to enjoy the privi- 
leges previously granted to him by the Church (Canon 2263). 

Acts of jurisdiction of both the internal and external forum 
by an excommunicated person are illicit, and, if a condemnatory 
or declaratory sentence of excommunication has been issued 
against him, his acts of jurisdiction are invalid, without preju- 
dice to the rule of Canon 2261, §2 (Canon 2264). 


DEPRIVATION OF RiguHt ofr APPOINTMENT TO ECCLESIASTICAL 
DIGNITIES, OFFICES, BENEFICES, ORDINATION 


2106. Every excommunicated person whatsoever: 

(1) is forbidden to make use of the right of election, presen- 
tation, or nomination ; 

(2) is incapable of acquiring dignities, offices, benefices, 
ecclesiastical pensions or any position in the Church; 

(3) cannot be promoted to orders (Canon 2265, §1). 

Acts exercised in violation of the prohibitions in nn. 1-2 
are not invalid, unless they were done by an excommunicatus 
vitandus or by a person excommunicated by a declaratory or 
condemnatory sentence. Once such a sentence has been issued, 
the person condemned cannot validly obtain any papal favor, 
unless mention is made of the excommunication in the papal 
rescript (Canon 2265, § 2). 

2107. After a condemnatory or declaratory sentence the 
excommunicated person remains deprived of the income or rev- 
enue of any dignity, office, benefice, pension, or position which 
he might have in the Church; an excommunicatus vitandus 
forfeits the dignity, office, benefice, pension, or position itself 
(Canon 2266). 


FORBIDDEN Civi. COMMUNICATION WITH AN EXCOMMUNICATUS 
VITANDUS 


2108. All the faithful, except a husband (or wife), parents, 
children, servants and subjects, are bound to avoid communi- 
cation in profane affairs with an excommunicatus vitandus, 
unless a reasonable cause justifies communication (Canon 2267). 

Before the Constitution ‘‘Apostolice Sedis’’ of Pope Pius 
IX (1869), communication with an excommunicatus vitandus 
entailed an ipso facto excommunication (called excommunicatio 


CANONS 2263-2269 443 


minor). The Sacred Congregation of the Inquisition, December 
0, 1883, declared that the excommunicatio minor had been abol- 
ished by the said constitution, but it further declared, August 
2, 1893, that, though the minor excommunication had been abol- 
ished, the prohibition remained to communicate without a legiti- 
mate excuse with an excommunicatus vitandus.?2 


ARTICLE IIl—OF THE INTERDICT 


2109. An interdict is a censure by which the faithful are 
not denied communion with the Church, but are deprived of 
certain spiritual goods (or rights) enumerated in the succeeding 
Canons. The prohibition is made either directly by a personal 
interdict, which forbids to the persons themselves the use of 
the spiritual goods, or indirectly by a local interdict, by which 
the dispensation or reception of such goods is forbidden in 
certain places (Canon 2268), 


Waar AUTHORITIES CAN Issug INTERDICT 


2110. A general local interdict on the territory of a diocese 
or a state and a general personal interdict on the people of a 
diocese or state can be inflicted by the Apostolic See alone, or 
by its mandate. <A general interdict on a parish or the people 
of a parish, and a particular interdict, both local and personal, 
can be decreed also by the bishop. A personal interdict follows 
the interdicted persons into any place; a local interdict has no 
force outside the interdicted territory, but in the interdicted 
territory all persons, including strangers and exempt, unless 
they have a special privilege, are obliged to observe the inter- 
dict (Canon 2269). 


CONSEQUENCES OF LocaL INTERDICT 


2111. A local interdict, either general or particular, does not 
forbid the administration of the Sacraments and sacramentals to 
dying persons, provided the rules of law are observed (cfr. Canon 
2271, n. 2) as to administration of the Sacraments and the hold- 
ing of other functions without pomp and solemnity, but it is for- 
bidden to hold any divine offices or sacred rites in the inter- 


82 Lega, ‘‘De Delictis et Ponis,’’ nn. 155-156. 


444 A PRACTICAL COMMENTARY 


dicted territory, with the exception of the concessions granted 
in § 2 of this Canon and in Canons 2271-2272 (Canon 2270, § 1). 

On the feasts of Christmas, Easter, Pentecost, Corpus Christi 
and the Assumption of the Blessed Virgin Mary, a local inter- 
dict is suspended, and only the conferring of Orders and the 
solemn nuptial blessing are forbidden (Canon 2270, § 2). 

2112. If there is a general local interdict, and the decree 
imposing the interdict does not explicitly state otherwise, the 
following concessions are granted: 

(1) provided they are not personally interdicted, clerics are 
allowed to conduct the divine offices and sacred functions in 
private in any church or oratory under the condition that the 
doors are locked, the services are conducted in a low tone of 
voice, and the church bells are silent; 

(2) in the cathedral church, in parochial churches, and in 
a church which is the only one in a town, and in these churches 
exclusively, it is permitted to celebrate one Mass, to reserve 
the Blessed Sacrament, to administer Baptism, the Holy Euchar- 
ist and Penance, to witness marriages without the nuptial bless- 
ing, and to hold funeral services, but every kind of solemnity 
is forbidden; furthermore, it is permitted to bless baptismal 
water and holy oils, and preach the word of God. In connexion 
with these sacred functions, however, singing and all pomp in 
sacred vestments and other sacred furnishings are forbidden, 
also the ringing of church bells and the playing of the organ 
and other musical instruments. The Holy Viaticum is to be 
brought to the sick privately (Canon 2271). 

Canon 2271, n. 1, orders the services to be conducted janus 
clausis (with the doors locked); as this clause is not repeated 
in n. 2, all the faithful may be admitted to the services, except 
those who are personally interdicted or who have committed or 
participated in the offense for which the local interdict was 
inflicted: the latter may be allowed to assist only at sermons 
(efr. Canons 2275-2276). Concessions similar to those of Canon 
2271 had been made by Pope Gregory IX ** and by Pope Boni- 
face VIII.** 


83 Decretales Greg. IX, c. 57, De sententia excommunicationis, lib. V, 
tite au 
34 Decretales Greg. IX, c. 25, De privilegus, lib. V, tit. 33. 


CANONS 2270-2273 445 


CONSEQUENCES OF LocAL PARTICULAR INTERDICT 


2118. If an altar or a chapel of a church has been placed 
under an interdict by a local particular interdict, no sacred 
office or rite may be celebrated at that altar or in that chapel 
(Canon 2272, § 1). 

If a cemetery has been interdicted, the bodies of the faithful 
may be buried there, but without any ecclesiastical rites (Canon 
2272, § 2). 

If an interdict has been placed on a certain church or ora- 
tory, the following rules obtain: (1) if it is a capitular church 
and the chapter is not interdicted, the rule of Canon 2271, n. 1, 
applies, unless the decree which imposes the interdict commands 
that the Conventual Mass be celebrated and the Canonical Hours 
recited in another church or oratory; (2) if it is a parish church, 
the rule of Canon 2271, n. 2, applies, unless the decree which 
imposes the interdict substitutes another church during the time 
of the interdict (Canon 2272, § 3). 


EXTENT OF GENERAL AND PARTICULAR LOCAL INTERDICTS 


2114. If a city is interdicted, all the accessory places (even 
though exempt, and including the cathedral church, if there be 
one) are included under the interdict. If a church is inter- 
dicted, the adjoining chapels are also interdicted, but not an 
adjoining cemetery. If a chapel is interdicted, the whole church 
of which the chapel is a part is not interdicted; if the cemetery 
adjoining the church is interdicted, the church is not inter- 
dicted, but all oratories in the cemetery are interdicted (Canon 
2273). 

What are the accessory places when an interdict is placed 
on a city? Pope Boniface VIII declared that by accessory 
places are to be understood the suburbs and adjacent buildings 
in order that the sentence of the interdict may not be despised 
by the holding of divine services in such places.*° Cardinal Lega 
argues from the law of the Decretals that the bishop who pro- 
nounces an interdict on a place of his diocese, can simultane- 
ously place under interdict also the places of another diocese 
adjoining the town or city which he has iriterdicted, and that 


35 Liber Sextus, c. 17, De sententia excommunicationis, lib, V, tit. 11, 


446 A PRACTICAL COMMENTARY 


he has the right to specify the adjoining places of the other 
diocese which are to be under the interdict.*° Augustine denies 
that the law of the Decretals extends the interdict to adjoining 
places, if they belong to another diocese;** Sole endorses the 
opinion of Lega.*® 


INTERDICT ON A COMMUNITY OR COLLEGE 


2115. If a community or college has committed an offense, 
an interdict may be issued either against all guilty individuals, 
or against the community as such, or against the guilty persons 
and the community (Canon 2274, §1). 

In the first case, the precepts of Canon 2275 apply (Canon 

2274, § 2). 

In the second ease, the community or Rice cannot exercise 
any spiritual rights which it possesses as a community (Canon 
2274, § 3). 

In the third ease, the interdict has the combined consequences 
of a particular and a general personal interdict (Canon 
2274, § 4). 

2116. (1) Personally interdicted individuals cannot cele- 
brate divine offices or assist at them, except at the preaching 
of the word of God. If they assist passively, they need not be 
expelled; but from all active assistance which entails any par- 
ticipation in the celebration of the divine offices shall be ex- 
cluded those persons who have been interdicted by a condemna- 
tory or declaratory sentence, or whose interdict is otherwise 
notorious. 

(2) Personally indicted individuals are peeamidaen to admin- 
ister, effect (eg., by saying Mass), or receive the Sacraments 
and sacramentals, in accordance with Canons 2260, §1, and 
2261; 

(3) they are also subject to the deprivations of Canon 2265; 

(4) they are deprived of ecclesiastical burial in accordance 
with Canon 1240, §1, n. 2 (Canon 2275). 

A community or legal body may be punished as a corpora- 
tion for offenses imputable to the corporate body by depriving 


36 De Delictis et Peenis, n. 169. 
37 Commentary, VIII, 208. 
88 De Delictis et Pants, n. 242. 


CANONS 2274-2276 447 


it of the use of the rights and privileges which it possesses in 
its corporate capacity. Both the civil and the ecclesiastical law 
recognize the right of the authorities to punish thus a cor- 
porate body. The common welfare demands that offending cor- 
porations be punished and checked in their violations of the 
law. The innocent members suffer to some extent, in so far as 
their rights as members of the corporate body are concerned, 
but the law demands that sacrifice from them for the sake of the 
common weal, Canon 2276 provides protection for their rights 
as individuals. 

When a community or legal body is punished with an inter- 
dict, one must weigh carefully the law or the decree which 
inflicts the penalty, for it may, as Canon 2274 states, be inflicted 
either on the guilty individuals of that body only, or on the 
legal body as such without special reference to the guilty mem- 
bers, or on both the guilty members and the body as such. The 
guilty members who caused the interdict to be inflicted on a 
legal body incur automatically a personal interdict and are 
liable to the deprivations of Canon 2275 (cfr. Canon 2338, § 4). 
Concerning the deprivation of ecclesiastical burial of personally 
interdicted individuals, Canon 1240, §1, n. 2, rules that the 
penalty does not take effect unless the interdict-is inflicted by 
a declaratory or condemnatory sentence. 


INNOCENT INDIVIDUALS IN LocaL INTERDICT AND IN INTERDICT 
oN A LEGAL Bopy 


2117. Persons who are under a local interdict or an inter- 
dict against a community or college, but have not been the cause 
of the interdict, and are not forbidden by any other censure, 
may, if they are properly disposed, receive the Sacraments in 
accordance with the preceding Canons, without absolution from 
the interdict and without any other satisfaction (Canon 2276). 

The very nature of ecclesiastical penalties (cfr. Canon 2215) 
proves that they are inflicted only on offenders against the law 
for the purpose of correcting them and vindicating ecclesiastical 
discipline. Now, in a local interdict and in an interdict against 
a community or college, there may be persons in the place or 
in the community or college who have not participated in the 
offense for which the place or the body of men was punished 


448 A PRACTICAL COMMENTARY 


with an interdict. Wherefore, the Code does not subject them 
to the deprivations entailed in the interdicts, in so far as their 
own persons are concerned. The Code says that they are free to 
receive the Sacraments in accordance with the preceding Canons, 
because they may not receive the Sacraments in a church which 
has been closed by the interdict, but they may go to another 
where services are allowed (cfr. Canons 2270-2272); per- 
sons who have been the cause of a local interdict, or of an inter- 
dict on a community or college, are in virtue of Canon 2338, § 4, 
placed ipso facto under a personal interdict, and, therefore, 
cannot receive the Sacraments even outside the interdicted place 
or territory, for a personal interdict follows the person every- 
where (cfr. Canon 2269, § 2). 

2118. Canonists have discussed the question whether an inter- 
dict on a place or a body of men should be considered a cen- 
sure, or merely as a vindicative penalty. Canon 2268, however, 
says that it is a censure both as a personal and a local inter- 
dict, affecting the persons directly in the one case, and indirectly 
in the other. Interdict and suspension may, however, be in- 
flicted in the manner of a vindicative penalty, but, when the 
law or the wording of the decree which inflicts the penalty 
leaves it doubtful whether they are censures or vindicative pen- 


alties, they are by law presumed to be censures (cfr. Canon 
DODO yea ee 


Interpvict ‘‘AB INcrREssSU ECCLESL&’’ 


9119. The interdict ‘‘ab ingressu ecclesie’’ entails the pro- 
hibition to celebrate divine offices in church, to assist at them, 
and to receive ecclesiastical burial. If the person so interdicted 
nevertheless assists, he need not be expelled, and, if he is buried 
(in consecrated ground), the body need not be removed (Canon 
2277). 

This interdict ‘‘from entering a church’’ is in the nature of a 
personal particular interdict. Regarding this interdict, the law 
of the Decretals ruled that a person who violates it by partak- 
ing in the divine services, or continues in his office as before the 
interdict, becomes irregular.*° Sole maintains that a person 
who is under this interdict is permitted to receive the Sacra- 


39 Lega, ‘‘De Delictis et Penis,’’ n. 170. 
40 Liber Sextus, c. 20, De sent. excom., lib. V, tit. 11. 


CANONS 2277-2279 449 


ments in a church.** However, the prohibition to celebrate the 
divine offices and to assist at them seems to extend to both the 
administration and the reception of the Sacraments according 
to the definition of the terms ‘‘divine offices’’ given in Canon 
2256. The interdict ‘‘from entering a church’’ does not forbid 
the person who is under that penalty to enter a chureh and 
pray there privately outside of divine services, nor does it forbid 
him to assist either actively or passively at divine services in a 
public, semi-publie, or private oratory, for in the matter of pen- 
alties the term ‘‘church”’ is to be understood of those places of 
divine worship which are called churches in Canon 1161. 


ARTICLE III.—OF SUSPENSION 


2120. Suspension is a censure by which a cleric is forbidden 
to exercise the rights of his office or benefice or both. The 
effects of a suspension are not inseparable, but, unless the con- 
trary is certain, all the consequences enumerated in the suc- 
ceeding Canons follow from a suspension inflicted generally (i.e., 
without qualifications or limitations). On the contrary, from 
a suspension from office or from benefice the consequences of 
either species only follow (Canon 2278). 

Suspension is a penalty which ean be visited on the clergy 
only (cfr. Canon 2255, §2). It does not deprive the cleric of 
his office, or his benefice, or other rights of the clergy, but it 
forbids the use and enjoyment of these rights, and differs there- 
fore from deposition and degradation. 


VARIOUS SPECIES or SUSPENSIONS 


2121. Suspension from office simply, without the addition 
of any limitation, forbids every act of the power of orders and 
Jurisdiction, even the mere administration to which one is en- 
titled by one’s office with the exception of the administration 
of the goods of one’s own benefice (Canon 2279, § 1). 

(1) Suspension a jurisdictione, in general, forbids every 
act of the power of jurisdiction, both ordinary and delegated, 
in either the internal or the external forum. 

(2) Suspension a divinis forbids the exercise of every act 


41‘“De Delictis et Ponis,’?)n. 247. 


450 A PRACTICAL COMMENTARY 


of the power of orders which one obtained either by sacred 
orders or by privilege. 

(3) Suspension ab ordinibus forbids every act of the power 
of orders received by ordination. 

(4) Suspension a sacris ordinibus forbids every act of the 
power of orders received by ordination to major orders. 

(5) Suspension a certo et definito ordine exercendo forbids 
the exercise of every act of the order designated in the sus- 
pension; besides, the suspended person is forbidden to confer 
that order and to receive a higher order and, if he has received 
it, to exercise that order. 

(6) Suspension a certo et definito ordine conferendo forbids 
the conferring of that order, but not of an inferior or superior 
order. 

(7) Suspension a certo et definito ministerto (e.g., the hear- 
ing of confessions), or from a certain and specified office (e.g., 
the care of souls), forbids every act of the ministry or office 
specified in the suspension. 

(8) Suspension ab ordine pontifical forbids every act of the 
powers of episcopal orders. ! 

(9) Suspension a pontificalibus forbids the exercise of the 
episcopal acts, as specified in Canon 337 (Canon 2279, § 2). 

9122. Suspension from a benefice deprives the holder of the 
benefice of the fruits or income of the benefice, except the right 
of residing in the house or residence pertaining to the benefice, 
but it does not deprive him of the right to administer the goods 
of the benefice, unless the decree or sentence by which the sus- 
pension is inflicted explicitly takes away the administration 
from the suspended cleric and gives it to another. If, notwith- 
standing the censure, the beneficiary takes the income, he is 
bound to make restitution, and he ean be forced to do so even 
by means of canonical penalties, if necessary (Canon 2280). 

If a pastor is suspended from a benefice, he forfeits from 
the moment that the suspension becomes effective the income 
from his benefice. In the United States many dioceses give to 
the pastor, besides a salary of a fixed amount of money (to be 
drawn from the treasury of the parish), an allowance for his 
board. In these dioceses the statutes usually ordain that the 
stole fees (i.e., offerings of the people at Baptism, Marriage, 
and funerals) become the property of the parish. It seems that, 


CANONS 2279-2281 A451 


in a suspension from a benefice, the pastor forfeits both his 
Salary and board allowance for the duration of the suspension, 
for both the salary and board allowance are in that case the 
Income or revenue of the benefice. The Mass stipends (at least 
the so-called stipendia manualia) are not part of the benefice, 
but personal offerings made to him who says the Mass. With 
the concession of residence in the house of the benefice are 
very likely included light, water, and heating, without which 
the house would not be a convenient dwelling-place. All the 
income of the benefice which has been illegally appropriated by 
the suspended pastor must in justice be returned to the parish, 
even before orders to that effect are issued by the bishop, and, 
if the pastor neglects to make the restitution, he can be forced 
by canonical penalties to satisfy this obligation. 

The suspension from office of a pastor or an assistant priest 
does not deprive them of the salary or revenue, but the bishop 
undoubtedly can deprive them of it, because the salary is given 
in consideration of the office, and, when they cannot perform 
the duties of their office through their own fault, they cannot 
complain if they are deprived of the salary. 

2123. A general suspension, or a suspension from office or 
from benefice, affects all offices or benefices which a cleric holds 
in the diocese of the superior who suspends him, unless the 
contrary is apparent (Canon 2281). 

The general suspension deprives a person of the exercise of 
both office and benefice, and of the use of the powers of orders 
as well as of jurisdiction. The local Ordinary cau, of course, 
deprive his clerical subjects only of the right to exercise offices 
and benefices which they hold in his diocese, not of those which 
perhaps they hold in another diocese. It is difficult to har- 
monize Canon 2281 with Canon 2279, §1: the latter Canon 
gives the rule that a suspension from office without addition of 
a limitation forbids every act of the powers of orders and juris- 
diction, and therefore a cleric cannot licitly exercise any ecclesi- 
astical office; on the other hand, Canon 2281 states that by a 
general suspension, or by a suspension from office or from bene- 
fice issued by the local Ordinary, only the offices and benefices 
which one holds in the diocese of the suspending Ordinary are 
affected. A personal penalty affects the guilty individual every- 
where, but Canon 2226, § 4, admits of an exception to this gen- 


452 A PRACTICAL COMMENTARY 


>] 


eral principle saying, ‘‘nisi aliud expresse caveatur.’’: It seems 
that Canon 2281 explicitly modifies the general principle in the 
case of suspension of a cleric who holds an office or benefice in 
another diocese, for the following Canon repeats that the Ordi- 
nary of one diocese cannot suspend a cleric from an office or 
a benefice which such cleric holds in another diocese. 

A local Ordinary cannot suspend a cleric from a specified 
office or benefice that is located in a strange diocese, but the 
suspension late sententie, inflicted by the common law, affects 
all offices or benefices in whatever diocese they may be held by 
a cleric (Canon 2282). 

9194. What is said concerning excommunication in Canon 
9°65 is to be applied also to suspension (Canon 2283 ) . 

Commentators disagree as to what suspension is declared in 
Canon 2283 to entail all the penalties of Canon 2265. It is 
reasonable to interpret the term suspension in the sense of a 
general suspension; such a suspension alone forbids the exer- 
cise of orders and jurisdiction, of office and benefice, and, 
having thus all the combined effects of the various partial sus- 
pensions, is for that reason the most severe kind of suspension. 
Canon 2283 cannot mean to say that the deprivations of Canon 
2265 follow the partial suspensions, for the consequences of the 
partial suspensions are individually enumerated in Canons 2279-— 
2281, which would be quite superfiuous, if the partial suspen- 
sions entailed the same deprivations of Canon 2265.% 

9125. When one has incurred a censure of suspension which 
forbids the administration of the Sacraments and sacramentals, 
the precepts of Canon 2261 apply; when a censure of suspension 
has been incurred which forbids an act of jurisdiction either 
in the internal or the external forum (e.g., sacramental absolu- 
tion), the act is invalid, if a condemnatory or declaratory sen- 
tence has been issued, or if the superior has explicitly declared 
that he revokes the jurisdiction itself; otherwise it is merely 
illicit, unless performed at the request of the faithful in aecord- 
ance with Canon 2261, §2 (Canon 2284). 

A suspension which forbids the administration of the Sacra- 
ments and sacramentals (e.g., a general suspension or a sus- 
pension ab officio, a divinis, ab ordinibus) has the consequences 
of Canon 2261. If a suspension forbids an act of jurisdiction 


42 Augustine, ‘‘Commentary,’’ VIII, 229-241. 


CANONS 2282-2285 453 


(e.g., a general suspension, a suspension ab officio, a jurisdic- 
tione), the acts of jurisdiction forbidden to the suspended cleric 
may be either invalid or illicit in accordance with the rule of 
Canon 2284. If the exercise of jurisdiction is not invalidated 
by the suspension, its exercise becomes licit under the cirecum- 
stances specified in Canon 2261, § 2. 

The reception of the Sacraments is not forbidden to the 
cleric who has incurred a general or a partial suspension, pro- 
vided he is truly contrite for the offense for which he has been 
punished with suspension, even though the censure or penalty 
is reserved so that the confessor cannot absolve him from the 
suspension. Canon 2250 states that, when there is question of 
a censure which does not forbid the reception of the Sacraments, 
the person can be absolved from the sin, though the censure 
remains. 


SUSPENSION OF A COMMUNITY OR COLLEGE 


2126. If a community or college of clerics has committed an 
offense, suspension may be inflicted either on the guilty indi- 
viduals, or on the community as such, or on both the guilty 
individuals and the community. If it is inflicted on the guilty 
individuals, the precepts of this Article (Canons 2278 sqq.) 
shall apply; if the community as such is punished with sus- 
pension, the community is forbidden the exercise of the spiritual 
rights which pertain to it as a community; if both the guilty 
individuals and the community as such are suspended, the sus- 
pension has both the effects just specified (Canon 2285). 

Excommunication may be inflicted on physical persons only, 
not on a moral person or body of men (cfr. Canon 2255, § 2) ; 
on the other hand, an interdict and suspension may be incurred 
by a community or body of men. As to the consequences of a 
suspension pronounced against or incurred by a community or 
college, and especially with reference to the innocent members 
of such body, efr. above on Canons 2274, 2276, 


454 A PRACTICAL COMMENTARY 


TITLE IX 
OF VINDICATIVE PENALTIES 


2127. Vindicative penalties are those which tend directly 
towards the expiation of an offense, so that their remission does 
not depend on the cessation of the contumacy of the offender 
(Canon 2286). 

The censures are medicinal or corrective penalties, which 
must be pardoned by the competent authority when the offender 
with proper disposition asks for absolution, because these pen- 
alties have then attained their purpose—the amendment of the 
offender. Vindicative (or punitive) penalties are, as the very 
name suggests, intended primarily for the expiation of the vio- 
lation of law and order, and only secondarily for the correction 
or amendment of the offender. Vindicative penalties are, as a 
rule, inflicted for a definite length of time (e.g., suspension from 
orders, jurisdiction, etc., for one year, a suspension or other 
penalty ad beneplacitum nostrum, i.e., for so long as the superior 
who inflicts the penalty wants it to remain); a perpetual pen- 
alty is likewise a vindicative penalty, not a censure. 

2128. From vindicative penalties which have been inflicted 
the offender has the right of appeal or recourse 7 suspensivo, 
unless the contrary is explicitly stated in law (Canon 2287). 

The appeal or recourse in suspensivo holds the penalty in 
abeyance, and leaves it to the higher superior to impose the 
penalty, or to remit it, or to modify it. The right of appeal 
has reference to vindicative penalties imposed by sentence of 
the ecclesiastical court; the right of recourse has reference to 
the vindicative penalties imposed by particular decree or pre- 
cept of the ecclesiastical superior. From vindicative penalties 
late sententie inflicted by either the common or the particular 
law there is no appeal or recourse, because they take effect 
immediately on the violation of the law to which such a penalty 
is attached. It may be noted that the Code allows appeal or 
recourse in suspensivo against a sentence, decree, or precept, 
which inflicts a vindicative penalty, while it does not permit 
such appeal or recourse against a sentence, decree or precept 
imposing a censure (cfr. Canon 2243). 

2129. Except in cases of penalties of degradation, deposi- 


CANONS 2286-2289 455 


tion, and deprivation of office or benefice, and unless there is 
urgent reason for repairing a scandal, it is left to the discretion 
of the judge to suspend the execution of an ordinary penalty 
inflicted by a condemnatory Sentence, if the offender after a 
laudable life has failed for the first time; but he may suspend 
the execution of the sentence only under condition that, if the 
guilty person within the next three years commits another of- 
fense either of the same or of a different kind, he shall be liable 
to the penalty of both offenses (Canon 2288). 

Note that the Code grants power to the ecclesiastical judge 
to suspend the execution of a vindicative penalty inflicted by 
a condemnatory sentence. The condemnatory sentence supposes 
that the law or precept threatens the offender with a penalty, 
that the offender has actually violated the law, and that the 
ecclesiastical court has found “him guilty and condemned him 
to the penalty (cfr. Canon 2223, §§ 1-3, on the powers of the 
judge in such eases). If the law itself imposes the penalty on 
the very violation of the law (late sententic penalties), the 
penalty is incurred automatically (cfr. Canon 2232), and Canon 
2223, § 4, leaves it to the discretion of the ecclesiastical superior 
whether he wishes to issue the declaratory sentence, obliging 
him only in certain cases specified in this Canon to issue the 
sentence. Canon 2232 defines the effects of the declaratory 
sentence. 

2130. The vindicative penalty ceases on its expilation or its 
dispensation granted by him who has, in accordance with Canon 
2236, legitimate authority to dispense (Canon 2289). Canon 
2236 rules that the dispensation from vindicative penalties can 
be granted by him who inflicted it, or by his competent superior 
or successor, or by a person to whom this faculty is committed 
by the aforesaid authorities, 

2131. In more urgent occult eases, if by the observance of 
a vindicative penalty late sententie (cfr. Canon 2217 ne Tige?)} 
the guilty person would betray himself with resulting infamy 
and scandal, any confessor may in the sacramental forum SUs- 
pend the obligation of observing the penalty under the following 
conditions: the confessor shall enjoin on the offender the burden 
to have recourse to the Sacred Penitentiary, or to the bishop 
who has the faculty to dispense, if the recourse can be taken 
without grave inconvenience; the petition is to be made by letter 


456 A PRACTICAL COMMENTARY 


and through the confessor within at least one month; the name | 
of the offender shall be concealed; the orders of the superior to 
whom recourse is made must be obeyed. If in some extraor- 
dinary case this recourse is impossible, the confessor himself 
can grant the dispensation in accordance with Canon 2254, §3 
(Canon 2290). 

Canon 2232 states that a penalty hate: sententie, whether 
medicinal or vindicative, is incurred immediately on the trans- 
eression of the law, and obliges the culprit to observe the penalty 
in both the external and the internal forum; but, whenever the 
offender has incurred the penalty by a violation of the law that 
wag not notorious, and he cannot submit to the penalty without 
defaming himself, he is not obliged to observe the penalty in 
the external forum until a declaratory sentence has been issued 
against him, or his offense has become notorious. Why does 
Canon 2290 rule that the confessor is to grant the suspension 
of the penalty? There is no doubt that the benefit of Canon 
9932, can be enjoyed without the intervention of the confessor, 
but the submission of the case to the confessor gives the offender 
additional benefits not enjoyed under Canon 2232, for he is 
freed from the penalty for the time being to such an extent that 
he is excused from its observance, not only in the external but 
also in the internal forum, and can exercise the acts which 
would otherwise be forbidden to him by the penalty, not only 
in cases where the omission of these acts would betray his of- 
fense to the public, but also in other cases where there is no 
danger of betraying himseltf.** 


CHAPTER I 


OF COMMON VINDICATIVE PENALTIES 


2132. The vindicative penalties which may according to the 
eravity of the offenses be inflicted on all the faithful (1e., clerics 
and laymen), are chiefly the following: 

(1) local interdict and interdict on a community or college 
imposed forever, or for a specified length of time, or ad bene- 
placitum superioris (as long as the superior wills) ; 


48 Vermeersch-Creusen, ‘‘Epitome,’’ III, n. 491. 


CANONS 2290-2203 457 


(2) interdict from entering a church imposed forever, or 
for a specified length of time, or ad beneplacitum superioris; 

(3) penal transfer or suppression of a bishopric or a parish ; 

(4) infamy of law; 

(5) deprivation of ecclesiastical burial, in accordance with 
the rule of Canon 1240, §1; 

(6) deprivation of the sacramentals; 

(7) deprivation or temporary suspension (ad tempus) of a 
pension which is paid by the Church or from ecclesiastical goods, 
or deprivation of any other ecclesiastical right or privilege; 

(8) prohibition to exercise legal ecclesiastical acts (cfr. 
Canon 2256, n. 2) ; 

(9) disqualification to obtain ecclesiastical favors or posi- 
tions in the Church which do not demand the clerical state, or 
to acquire academic degrees conferred by ecclesiastical authority ; 

(10) deprivation of or temporary suspension from a position, 
faculty or favor already obtained; 

(11) deprivation of the right of precedence, of an active 
and passive vote, or of the right to use honorary titles, dis- 
tinetive dress, or insignia which the Church has conceded; 

(12) pecuniary fines (Canon 2291). 

2133. The penal suppression or transfer of an episcopal see 
is reserved to the Roman Pontiff; the transfer of a parish can- 
not be decreed by the local Ordinaries except after consultation 
with the Chapter—or diocesan consultors (Canon 2292). 

2134. Infamy is divided into infamy of law and infamy of 
fact. Infamy of law is that which is declared in the cases 
fixed by the common law. Infamy of fact is contracted when, 
through the commission of an offense or bad eonduct, one has 
lost good repute with righteous and serious Catholics; the judg- 
ment as to whether infamy of fact exists in a given case is 
vested in the Ordinary. Neither infamy affects the blood-rela- 
tions or relations by marriage of the offender, without prejudice 
to the law of Canon 2147, § 2, n. 3 (Canon 2293). The Canon re- 
ferred to rules that an irremovable pastor may be deprived of his 
parish for keeping in his house servants or blood-relations of 
disreputable character, if he has thereby lost the respect of his 
parishioners. 

2135. A person who has incurred infamy of law is not only 
irregular, as declared by Canon 984, n. 5, but in addition he is 


458 A PRACTICAL COMMENTARY 


incapacitated from obtaining ecclesiastical benefices, pensions, 
offices and dignities, from performing legal ecclesiastical acts, 
from discharging any ecclesiastical right or duty, and must be 
restrained from the exercise of sacred functions of the ministry 
(Canon 2294, § 1). 

A person who has incurred infamy of fact must be restrained 
not only from the reception of orders (in accordance with Canon 
987, n. 7), from dignities, benefices, and offices of the Church, 
but also from the exercise of the sacred ministry and from 
legal ecclesiastical acts (Canon 2294, § 2). 

There is a great difference between the consequences of the 
infamy of law and the infamy of fact. If it is an infamy of 
law, the person who incurred this penalty cannot validly obtain 
ecclesiastical benefices, pensions, offices and dignities, nor can 
he validly exercise the rights connected with the same, nor per- 
form a valid legal ecclesiastical act. If it is infamy of fact, 
the obtaining of ecclesiastical benefices, offices, etc., as well as 
their exercise, are illicit but valid. Because of the grave conse- 
quences of infamy of law, the Code rules that it can be decreed 
by the common law only, and the cases in which the law imposes 
the penalty of infamy of law are easily discernible, for the Code 
invariably uses the same term ‘‘infamia juris”? (infames). The 
Code imposes this penalty either in the form of a penalty late 
sententic (e.g., in Canon 2320: ‘‘est ipso facto infamis’’), or as a 
penalty ferenda sententie (e.g., in Canon 2314, §1, n. 2: ‘“in- 
fames declarentur’’). The infamy of law ferende@ sententie 
does not entail the consequences of Canon 2294, § 1, until after 
the issuance of the condemnatory sentence, as is evident from 
the general principles of ecclesiastical penalties. 

2136. Infamy of law ceases only on dispensation granted by 
the Apostolic See. Infamy of fact ceases when the Ordinary, 
after considering all the circumstances and especially the pro- 
longed amendment of the guilty party, shall prudently judge 
that the person has regained good repute with righteous and 
serious Catholics (Canon 2295). The prolonged amendment 
(diuturna emendatio) very likely means laudable conduct for 
three years, as in the case spoken of in Canon 672. 

2137. If there is question of acquiring things for which the 
common law ordains rules of capability, the penalty of dis- 
qualification can be inflicted by the Apostolic See alone. Rights 


CANONS 2294-2297 459 


acquired previous to the incurring of a disqualification are not 
lost thereby, unless the penalty of deprivation is added to the 
penalty of disqualification (Canon 2296). 

The exercise of acquired rights may be rendered invalid or 
illicit by incurring a disqualification (e.g., the infamy of law 
or of fact, cfr. Canon 2294), but the right itself is not taken 
away, unless the law or sentence explicitly states the additional 
penalty of deprivation of benefices, offices, ete. Consequently, 
when the penalty of disqualification ceases by expiation or by 
dispensation, the use and enjoyment of the former rights revive. 

2138. Pecuniary fines inflicted by the common law without 
specifying the purpose for which these fines are to be applied, 
and pecuniary fines imposed or to be hereafter imposed by par- 
ticular law, must be employed by the local Ordinaries for pious 
purposes, and may not be used for the benefit of the mensa 
episcopalis or capitularis—i.e., neither for the maintenance of 
the bishop’s household nor for that of the Cathedral Chapter 
(Canon 2297). 


CHAPTER II 


OF VINDICATIVE PENALTIES SPECIAL TO THE CLERGY 


2139. The vindicative penalties which are imposed on clerics 
exclusively are the following: 

(1) prohibition to exercise the sacred ministry except in a 
certain church; 

(2) suspension for ever, or for a definite length of time, or 
ad beneplacittum Superioris ; 

(3) penal transfer from an office or benefice to an inferior 
one ; 

(4) deprivation of some right connected with a benefice or 
office ; 

(5) disqualification for all or some dignities, offices, bene- 
fices and other functions proper to the clergy; 

(6) penal deprivation of a benefice or office with or without 
a pension ; 

(7) prohibition to stay in a certain place or territory ; 

(8) precept to stay in a certain place or territory; 

(9) temporary deprivation of the ecclesiastical garb; 


460 A PRACTICAL COMMENTARY 


(10) deposition ; 

(11) perpetual deprivation of the ecclesiastical garb ; 

(12) degradation (Canon 2298) . 

9140. If a cleric obtains an irremovable benefice, he cannot 
be deprived of it as a penalty except in the cases stated ex- 
pressly in law; if he has a removable benefice, he can be deprived 
of it also for other reasonable causes. Clerics who hold bene- 
fices, offices, or dignities, may for a fixed space of time be pro- 
hibited from the exercise of some ministry connected with them 
(e.g., the ministry of preaching, hearing of confessions, etc.). 
A cleric cannot be deprived of the benefice or pension under 
the title of which he was ordained, unless other provision is 
made for his respectable maintenance, without prejudice to the 
precepts of Canons 2303-2304 (Canon 2299). -The Canons re- 
ferred to deal specifically with the provision for maintenance 
of a cleric who has been deposed. Canons 2147-2167 deal with 
the removal of irremovable and removable pastors. 

9141. If a cleric gives grave scandal, and after being admon- 
ished, does not amend, and if the scandal cannot otherwise be 
stopped, he may meanwhile be deprived of the right to wear 
the ecclesiastical garb, which deprivation entails for the time of 
its duration the prohibition to exercise any ecclesiastical min- 
istry and the deprivation of the clerical privileges (Canon 
2300). 

9142. The Ordinary may not command a cleric to stay im a 
certain place outside the territory of his diocese, unless the 
Ordinary of that place has consented, or unless there is question 
of sending a cleric to a house of penance or correction which 
ig intended not only for the clerics of the particular diocese 
but also for outsiders, or unless there is question of an exempt 
religious house, and with the consent of its superior (Canon 
2301). 

Since the jurisdiction of each local Ordinary is eonfined to 
the limits of his diocese, he may not order a cleric to leave his 
diocese and stay in a certain place in the diocese or territory 
of another local Ordinary unless the latter consents, or has 
given a general consent by allowing the erection of a house 
destined for the reception of priests generally for the purpose 
of doing penance and amending their lives. 

9143. The command or the prohibition to stay in some cer- 


CANONS 2298-2305 461 


tain place, and confinement in a house of correction or in a 
religious house, especially for a protracted period, shall be im- 
posed only in serious cases, where according to the conscientious 
judgment of the Ordinary these penances are necessary for the 
amendment of the cleric or the reparation of scandal (Canon 
2302). 

2144. Deposition, while leaving intact the obligations arising 
from orders and the clerical privileges, implies both suspension 
from office and disqualification to obtain or discharge any of- 
fices, dignities, benefices, pensions, or positions in the Church, 
and in addition deprivation of offices, benefices, ete., which the 
guilty cleric actually has, even though he was ordained under 
the title of such benefice, pension, ete. (Canon 2303, §1). 

If a cleric is by deposition deprived of a benefice or pension 
under the title of which he was ordained and the cleric is truly 
in need of aid after loss of such benefice or pension, the Ordi- 
nary shall charitably provide for him in the best possible man- 
ner lest he be forced to go begging and bring dishonor on the 
clerical state (Canon 2303, § 2). 

The penalty of deposition may be inflicted only in the cases 
specified in law (Canon 2303, § 3). 

2145. If a deposed cleric does not show any signs of amend- 
ment, and especially if he persists in giving scandal and does 
not heed advice, the Ordinary may deprive him for ever of the 
right to wear the ecclesiastical garb (Canon 2304, Oks) 

This deprivation entails the deprivation of the clerical privi- 
leges and the cessation of the precept of Canon 2303, § 2—.e., 
to provide charitable maintenance (Canon 2304, § 2). 

2146. Degradation includes deposition, perpetual deprivation 
of the ecclesiastical garb, and reduction to the state of the laity. 
This penalty may be imposed only for an offense which is 
visited with degradation in law, or if the cleric has already been 
deposed and deprived of the ecclesiastical garb, and still con- 
tinues for a year to give grave scandal. The degradation may 
be: (1) verbal or by edict, which is inflicted by a mere sen- 
tence, but has immediately all its juridical consequences without 
any execution; (2) real, if the solemnities prescribed by the 
Roman Pontifical are observed (Canon 2305). 

The distinction between deposition and degradation is clearly 
defined in the foregoing Canons. Both penalties have this in 


— 462 A PRACTICAL COMMENTARY 


common, that they may be inflicted only for offenses punished 
with these penalties by the law of the Code. Before the promul- 
gation of the Code, it was the common opinion of canonists 
that no authority inferior to the Holy See could decree deposi- 
tion or degradation against an offending subject, except for 
offenses to which the common law of the Church attached these 
penalties, and the Code explicitly confirms that opinion.** The 
distinetion between deposition and degradation was already 
stated in the law of the Deeretals.*® On trials for inflicting depo- 
sition, efr. Canon 1576. 


TITLE X 


OF PENAL REMEDIES AND PENANCES 


CHAPTER I 


OF PENAL REMEDIES 


9147. Penal remedies are: (1) admonition; (2) rebuke; 
(3) precept; (4) surveillance (Canon 2306). 

The penal remedies are preventative measures to avert the 
lapse into grave offenses. The very fact that they are called 
penal remedies, supposes that the conduct of the individual to 
whom the remedies are to be applied is blameworthy. 

2148. When a person stands in the proximate occasion of 
committing an offense, or when an investigation has created a 
grave suspicion that he has committed an offense, he shall be 
admonished by the Ordinary either in person or through an- 
other appointed for that purpose (Canon 2307). 

2149. If scandal or grave disturbance of order arises from 
the conduct of a person, he is to be rebuked by the Ordinary 
either in person or through another, or even by letter, and the 
rebuke should be accommodated to the peculiar conditions of 
the person and the fact about which there 1s question (Canon 
2308). 

9150. The admonition as well as the rebuke may be either 
public or secret (Canon 2309, § 1). 

44 Sole, ‘‘De Delictis et Poenis,’’ n. 292; Ayrinhac, ‘‘Penal Legisla- 


tion,’’? nn. 168-175. 
45 Decretales Greg. IX, ¢. 27, De verborum significatione, lib. V, tit. 40. 


CANONS 2306-2311 463 


Public admonition or rebuke is to be made cither in the 
presence of a notary or two witnesses, or by letter in such a 
manner that there is documentary proof of the reception of the 
letter and of the contents of the same (Canon 2309, § 2). 

Public rebuke may be administered only to an offender who 
has been convicted of, or has confessed the offense. It is ealled 
a judicial rebuke, if administered by a judge sitting in court 
or by the Ordinary before a criminal trial (Canon 2309, § 3) 

Judicial rebuke either takes the place of the penalty, or is 
given to increase the penalty, especially when there is question 
of relapse (Canon 2309, § 4). On the rules governing judicial 
rebuke, cfr. Canons 1947-1953. 

Even though admonition and rebuke are given secretly, some 
documentary evidence of their administration must be kept in 
the secret archives of the Curia (Canon 2309, § 5). 

Both admonition and rebuke may be given once or repeat- 
edly, at the discretion of the superior (Canon 2309, § G). 

2151. If the admonitions and rebukes have brought no re- 
sults, or if no favorable results can be anticipated, the precept 
or command is to be given by which the individual is to be 
told in detail what he shall do or what he shall avoid, a penalty 
being threatened in case of transgression of the precept (Canon 
2510). 

2152. If the gravity of the case demands, and especially if 
the person in question stands in danger of relapse into the same 
offense, the Ordinary shall subject him to surveillance. Sur- 
veillance may be prescribed also for the purpose of increasing 
the penalty, especially in case of relapse (Canon 2311). 


CHAPTER IT 


OF PENANCES 


2153. Penances are imposed in the external forum to furnish 
the offenders with an opportunity of escaping the legal penalty 
of their offenses, or of obtaining absolution or dispensation from 
a penalty which they have already contracted. For an occult 
offense or transgression public penance is never imposed. Pen- 
ances are to be imposed, not so much in proportion to the 
gravity of the offense, but rather in proportion to the contrition 


464. A PRACTICAL COMMENTARY 


of the offender, after the conditions of persons and the cireum- 
stances of the offenses have been taken into consideration (Canon 
2312). 

Canon 1947 rules that, if an offender is summoned to court 
and confesses his offense, the judge may administer rebuke and 
impose penances instead of the penalty of law, except in the 
cases enumerated in Canon 1948. Canon 1952 states that: these 
penances should be more lenient than the penalty would have 
been, if the criminal trial had proceeded to a sentence. Pen- 
ances are also imposed when a person, who has incurred a 
canonical penalty, truly repents and asks for absolution from 
a censure, or dispensation from a vindicative penalty. 

9154. The principal penaneces are: 

(1) the recital of specified prayers ; 

(2) pious pilgrimages or other works of piety; 

(3) special fasts; 

(4) almsgiving for pious purposes ; 

(5) retreat or spiritual exercises for some days in a pious 
or religious house ; 

The Ordinary may at his discretion impose penances, to- 
gether with the penal admonition or rebuke (Canon 2313). 


PART THREE 


OF PENALTIES AGAINST INDIVIDUAL 
OFFENSES 


TITLE XI 


OF OFFENSES AGAINST THE FAITH AND UNITY OF 
THE CHURCH 


2155. All apostates from the Christian faith and each and 
every heretic or schismatic incur the following penalties: 

(1) tpso facto excommunication ; 

(2) if they have been admonished and do not repent, they 
shall be deprived of any benefice, dignity, pension, office or 
other position which they may hold in the Church; they shall 
be declared infamous, and, if they are clerics, they shall after 
renewed admonition be deposed; 

(3) if they have joined a non-Catholic sect or have publicly 
adhered to it, they incur infamy wpso facto, and, if they are 
clerics and the admonition to repent has been fruitless, they 
shall be degraded. Canon 188, n. 4, provides, moreover, that 
the cleric who publicly abandons the Catholic faith loses every 
ecclesiastical office ipso facto and without any declaration (Canon 
2314, § 1). 

Absolution in the internal forum from the excommunication 
mentioned in the preceding paragraph is reserved in a special 
manner to the Apostolic See. If, however, the offense of apos- 
tasy, heresy or schism has in any way been brought to the 
external forum of the local Ordinary, even by voluntary con- 
fession, the Ordinary—but not the vicar-general, unless he has 
a special mandate—can absolve the repentant sinner in the ex- 
ternal forum by his ordinary authority, after the juridical 
abjuration has been made, and the other conditions demanded 
in law have been fulfilled. When he has been thus absolved 
from the censure, the offender may then be absolved from the 

465 


466 A PRACTICAL COMMENTARY 


sin in the internal forum by any confessor. The abjuration is 
made in juridical form, when it takes place in the presence of 
the local Ordinary or his delegate and at least two witnesses 
(Canon 2314, § 2). 

9156. The definition of apostasy, heresy and schism is given 
in Canon 1325, §2. As to heresy, it may be noted that formal 
heresy only is punished in Canon 2314; wherefore, as Cerato 
remarks,*® persons who were born and educated in an heretical 
sect, and never knew the true Faith, cannot be said to have 
stubbornly denied or rejected the Catholic Faith, and thus do 
not incur the penalties of Canon 2314. Nevertheless, in the 
external forum, they are not free from the penalties of Canon 
9314, for, in accordance with Canon 2200, when there is the 
external violation of a law of the Church, malice is presumed 
in the external forum until its absence has been proved. The 
Holy See has insisted that converts from heretical or schismatic 
sects shall not be received into the Chureh, until they have 
abjured heresy or schism and been absolved from the censure.” 
It children become converts before they have attained the age 
of puberty, they need no absolution from the excommunication 
(cfr. Canon 2230), and make—instead of the abjuration—simply 
the profession of faith.® 

9157. The local Ordinaries are empowered by Canon 2314, 
§ 2, to grant absolution from the excommunication under certain 
conditions laid down in the Canon. The Ordinary can delegate 
priests in his territory (even by a general delegation) to wit- 
ness in the presence of two witnesses the juridical abjuration 
and to absolve in the external forum: any confessor may then 
hear the confessions of the heretics or schismatics, and absolve 
them. In the United States the bishops usually delegate the 
priests who receive converts into the Church to witness the 
abjuration and to absolve from the censure. 

9158. Canonists discuss the question whether the local Ordi- 
naries have the power to absolve from the other penalties which 
(besides the excommunication) are inflicted on heresy, apostasy 
and schism, by Canon 2814, $1. If these offenses are public, 
the Ordinary cannot absolve from the infamy of law which is 


46 Censure vigentes (2nd ed.), n. 68. 

47 Instr. of Sacred Cong. of the Propaganda, July 20, 1859 (Collect. 
de P. F., I, n. 1178). 

48 Holy Office, March 8, 1882 (Collect. de P. F., I, n. 1566). 


CANONS 2314-2316 467 


incurred by those who join a non-Catholic sect or publicly adhere 
to it (efr. Canon 2237, §1, n. 3). If the offenses are occult, 
the guilty persons do not incur apso facto any penalty exeept 
the excommunication. The new faculties given by the Sacred 
Penitentiary to the local Ordinaries of the United States grant 
power to absolve from all censures and other ecclesiastical pen- 
alties ineurred by heresy. The Ordinary may habitually dele- 
gate this faculty to the Canon Penitentiary and to vicars-forane 
(deans) ; for a certain length of time to be fixed at the Ordi- 
hary’s discretion he may delegate this faculty to some other 
confessors, and, when the faculty is requested in individual 
cases, he may delegate any confessor. 


SUSPICION or HERESY 


2159. A person who is suspected of heresy, and who after 
admonition has not removed the cause for suspicion, shall be 
forbidden to exercise legal ecclesiastical acts; if he is a cleric, 
and after repeated admonition has not removed the cause for 
suspicion, he shall be suspended a divinis. Tf a person suspected 
of heresy has been punished with the penalties here stated, and 
does not amend within six months after their imposition, he 
shall be considered as a heretic and be able to the penalties for 
heresy (Canon 2315). | 

A person who of his own accord and knowingly helps in 
any manner to propagate heresy, or who communicates in sacred 
rites (in divinis) with heretics in violation of the prohibition 
of Canon 1258, incurs suspicion of heresy (Canon 2316). 

2160. Under the Constitution ‘‘Apostolice Sedis’’ of Pope 
Pius IX, October 12, 1869, in which an official list of common 
law censures was promulgated, some of the offenses of Canons 
2315-2316 were punished with the same penalties as the erime 
of heresy itself. The Code is more lenient, since it makes various 
acts of cooperation in heresy a distinct offense called ‘“suspicion 
of heresy.’’ Various Canons state the acts which constitute the 
offense of suspicion of heresy: Canons 2316 (cooperation in 
sacred rites with heretics, propagation of heresy), 2319 (agree- 
ment to educate one’s children as non-Catholies, procuring their 
baptism or education outside the Catholic faith), 2320 (saeri- 
legious abuse of the Holy Eucharist), 2382 (appeal from Decree 


468 A PRACTICAL COMMENTARY 


of the Roman Pontiff to an Ccumenical Council), 2340 (stub- 
born perseverance in excommunication for one year), 2371 (re- 
ception of orders through simony, ordaining or administering 
other Sacraments through simony). Participation in heretical 
sacred rites and assistance given to non-Catholic denominations 
which may directly or indirectly help to advance the cause of 
their religion is discussed under Canon 1258 (cfr. n. 1284) ; 
the other cases of suspicion of heresy will be discussed under 
the respective Canons. 


DEFENDING CONDEMNED DOCTRINES 


9161. Persons who stubbornly teach or defend, either pub- 
licly or privately, a doctrine which has been condemned by the 
Apostolic See or by an Ccumenical Council, not however as 
formally heretical, shall be barred from the ministry of preach- 
ing the Word of God and of hearing sacramental confessions, 
and from every office of teaching, without prejudice to other 
penalties which the sentence of condemnation of the doctrine 
may perhaps have decreed, or the penalties which the Ordinary, 
after admonition, may judge necessary to impose for the repara- 
tion of the scandal (Canon 2317). 

The Constitution ‘‘ Apostolic Sedis’’ stated that, when the 
Apostolic See had condemned a proposition under penalty of 
ipso facto excommunication, it was reserved simpliciter to the 
Roman Pontiff. The Code punishes the teaching of condemned 
propositions with penalties ferende sententie. By the term 
‘“ Apostolic See’’ is to be understood also the Holy Office or any 
other Sacred Congregation, Office, ete., of the Roman Curia, 
through which the Holy Father is accustomed to transact the 
affairs of the Universal Church (cfr. Canon 7). The Holy 
Office is particularly authorized by the Code (cfr. Canon 247) 
to watch over doctrines affecting faith and morals. Canon 
9317 speaks of teaching or defending condemned doctrines which 
have not been pronounced as formally heretical, for, if a doctrine 
has been pronounced formal heresy, one becomes a heretic by 
teaching or defending that doctrine, and incurs the penalties 
which Canon 2314 inflicts on heresy. A very comprehensive 
list of propositions condemned by the Holy See is given in 


CANONS 2317-2318 469 


Denziger’s ‘‘Enchiridion Symbolorum et Definitionum de Rebus 
Fidei et Morum.”’ 


PENALTIES IN REFERENCE To FORBIDDEN Books 


2162. An excommunication reserved to the Apostolic Sce in 
a special manner (speciali modo) is incurred ipso facto by the 
publishers at the moment of publication of books written by 
apostates, heretics and schismatics in defence of apostasy, heresy 
or schism; also by persons who defend or knowingly read or 
retain (in their possession) without due permission the above- 
mentioned books and others which have been by name forbidden 
by Apostolic Letters (Canon 2318, § 1). 

Authors and publishers who without the proper permission 
procure the printing of books of the Sacred Scriptures or anno- 
tations or commentaries on the same, incur ipso facto non- 
reserved excommunication (Canon 2318, § 2). 

The work of apostates, heretics or schismatics must be a 
book. How large a work must be to be called a book, is not 
stated in the Code. Vermeersch-Creusen think that it should 
have about 250 octavo pages to be called a book.*® That pamph- 
lets, leaflets, periodicals, magazines, and newspapers, do not come 
under the prohibition of books, though they defend heresy, 
schism, or apostasy, was declared by the Holy Office on April 
27, 1880, and on January 13, 1892.5° The last-named decree 
considers as books periodicals issued by heretics, schismatics or 
apostates in defence of their errors, if these periodicals are 
bound into books or volumes. The books must be written by 
apostates, heretics or schismatics; if written by others (e.g., 
Catholics, Jews, or pagans), they do not fall under Canon 2318. 
Books published as manuscripts, or by the process of lithography, 
or photography, are not considered published in the ordinary 
sense of the term publication. 

2163. Two classes of books are prohibited in Canon 2318, § 1: 
(1) books of apostates, heretics or schismatics defending heresy. 
Concerning these it has been declared in the above-mentioned 
Decree of April 27, 1880, that the reading of books of apostates 
or any author which merely contain heresy (continentes heresim) 


49 Hpitome, III, n. 517. 
50 Acta S. Sedis, XX, 368; XXIV, 625. 


470 A PRACTICAL COMMENTARY 


did not make the reader liable to the censure decreed by Pope 
Pius IX. This ruling may be applied also to Canon 2318, Salt 
(2) books forbidden by name by Apostolic Letters. Most books 
which are on the Index of Forbidden Books have been con- 
demned, not by Apostolic Letters but by Congregations of the 
Holy See (e.g., the former Sacred Congregation of the Index, 
the Sacred Congregation of the Holy Office). Only books con- 
demned by name by the Supreme Pontiff himself are meant in 
Canon 2318, §1. The form of the papal document (e.g., Bull, 
Constitution, Encyclical, Litter Apostolice, ete.) is imma- 
terial.°* 

9164. Persons punished by Canon 2318, §1, are: (1) the 
publishers of books of apostates, heretics or schismatics. It 
seems that the Latin term ‘‘editores’’ corresponds to the English 
term ‘‘publishers,’’ and means the person or business firm which 
undertakes to put the book on the market. Asa rule, the author 
is not the publisher of his own book, but gives it to a publishing 
firm; if he is his own publisher, he falls under the censures 
against publishers. Printers and other participants in the mak- 
ing of the books are not censured; (2) defenders of books of 
apostates, ete., and of books prohibited by name by Apostolic 
Letters. Defence seems to refer to words and actions by which 
the contents of the book are upheld as good and proper reading, 
and actions to save the book from destruction; (3) readers and 
possessors of the two classes of books who, in spite of the knowl- 
edge that it is forbidden under excommunication to read these 
books or have them in their possession, nevertheless read or keep 
them without due permission (cfr. Canons 1398, 1402-1405). 

2165. Canon 2318, § 2, punishes with non-reserved excom- 
munication incurred ipso facto authors and publishers of books 
of the Sacred Scriptures, and of annotations and commentaries 
on them, if the approval of the competent authorities of the 
Chureh was not obtained (cfr. Canons 1385, 13891). It is imma- 
terial whether the entire Bible or parts of it are published, or 
whether they are published in the original or in translation. 
The notes or comments on the Sacred Scriptures would have to 
be of considerable volume to make a book; if it 1s a scriptural 
review or magazine dealing exclusively or for the most part with 
studies on the Bible and the individual issues are bound into 


51 Sole, ‘‘De Delictis et Penis,’’ n. 328, 5. 


CANON 2319 AT1 


volumes, they are considered books, and publication is forbidden 
under Canon 2318, §2. On the general prohibition to publish 
books, periodicals, ete., on subjects of faith and morals without 
previous approval, cfr. Canon 1385. 


Mixep MarrRIAGES BEFORE Non-CATHOLIC MINISTER, AND Non- 
CATHOLIC Baptism or EDUCATION OF CHILDREN 


2166. Excommunication late sententiw reserved to the Ordi- 
nary is incurred by Catholics: 

(1) who contract marriage before a non-Catholic minister 
in violation of the prohibition of Canon 1063, § 1; 

(2) who marry with the explicit or implied agreement that 
all or any of the children shall be educated outside the Catholic 
Church; 

(3) who knowingly presume to offer their children to non- 
Catholic ministers for baptism; 

(4) parents or those who take their place who knowingly 
have their children educated or instructed in a non-Catholic 
religion (Canon 2319, § 1). 

Persons who do what is forbidden in § 1, nn. 2-4 are in addi- 
tion to the excommunication suspected of heresy (Canon 2319, 
Sis 

2167. The offense under n. 1 consists in this, that a Catholic 
who marries a non-Catholic, baptized or unbaptized, approaches 
a non-Catholic minister as minister of religion, either before or 
after the Catholic marriage ceremony, to give or renew his mar- 
riage consent (cfr. Canon 1063; above, n. 1042). Many com- 
mentators restrict the penalty to Catholics who marry a non- 
Catholic, but some commentators assert that the penalty is 
incurred also by two Catholics who give or renew the marriage 
consent before a non-Catholic minister as minister of religion.”? 
Two Catholics who marry before a non-Catholic minister are 
guilty of the offense of Canon 2316. In the former Canon Law 
there was an excommunication specially reserved to the Holy 
See visited upon Catholics who married before a non-Catholic 
minister as a minister of religion; the Holy Office declared that 
their offense was comprehended by the law of the Constitution 


52 Cappello, ‘‘De censuris,’’ n, 125; Ayrinhae, ‘‘Penal Legislation, ’’ 
13. 


472 A PRACTICAL COMMENTARY 


‘Apostolic Sedis’’ against the fautores heresis. The Third 
Plenary Council of Baltimore (n. 127) punished with ipso facto 
excommunication reserved to the local Ordinary Catholics who 
contracted or attempted to contract marriage before a minister 
of any non-Catholic sect. The law of the Code has superseded 
the particular law of the Council of Baltimore, in so far as the 
marriage of a Catholic with a non-Catholic before a non-Catholic 
minister is concerned. But the law of that Council remains, 
we believe, with reference to the marriage or rather attempted 
marriage of two Catholics before a non-Catholic minister, for 
the Code does not punish this offense of two Catholies with a 
late sententie censure (cfr. Canon 2316), and Canon 2221 em- 
powers the legislators to enforce both the divine and the ecclesi- 
astical law with penalties or to increase the penalty decreed by 
law (cfr. Canon 2244; above, n. 2085). 

2168. To contract marriage with the explicit or implied 
agreement that some or all children are to be educated outside 
the Catholic Church, is an offense against both the divine and 
the ecclesiastical law. Though such an agreement will more fre- 
quently occur in marriage of Catholics with non-Catholies, the 
Code does not limit it to such marriages, but ecomprehends all 
marriages contracted under that agreement. If the sinful pact 
is made after the marriage, the offense does not fall under Canon 
9319, §1, n. 2, but rather under Canon 2316. 

2169. Parents who, with full knowledge (sctenter) of the 
prohibition and the penalty of the law of the Church, have their 
children baptized by a non-Catholic minister, and parents or 
others who have children educated or instructed in a non-Catho- 
lic religion, incur thereby excommunication, reserved to the 
Ordinary. On the meaning of ‘“scienter,’’ efr. Canon 2229 
(above, n. 2069). 


TITLE XII 


OF OFFENSES AGAINST RELIGION 


9170. Persons who cast away the Sacred Species, or carry 
off or retain them for an evil purpose, are suspected of heresy, 
incur excommunication late sententi@ reserved in a most special 
manner to the Holy See, are branded ipso facto with infamy, 
and, if they are clerics, are to be deposed (Canon 2320). 


CANONS 2320-2321 473 


Casting away (abjecerit) means to throw the Sacred Species 
intentionally on the floor or ground, or any place where they 
are exposed to irreverence, as though it were a morsel of com- 
mon bread or any other trifling thing which one does not hesi- 
tate to throw away. The same penalties are incurred by those 
who carry away the Sacred Species for an evil purpose (ab- 
duxerit ad malum finem), or, if someone else has carried them 
off, who keep them for such purpose. As the evil purpose is 
not specified in the Code, any sinful purpose for which the 
Sacred Species are taken from the tabernacle or place of legiti- 
mate custody, or kept by some person after they had been taken 
by another, is comprehended in Canon 2320. The same crimes 
were severely forbidden by the former law, not however under 
censure late sententiw: the offender was to be tried, and, if 
convicted in the ecclesiastical court of outrages against the 
Blessed Sacrament, he was to be delivered up to the civil authori- 
ties for capital punishment.®? 


ILLEGAL BINATION AND BREAKING OF THE NATURAL FAST BEFORE 
CELEBRATING MAss 


2171. Priests who, in violation of the precepts of Canons 
806, § 1, and 808, presume to say two Masses on the same day 
or to celebrate Mass after having broken the natural fast, shall 
be suspended from the celebration of Mass for a period of time 
to be fixed by the Ordinary in proportion to the special cir- 
cumstances of the case (Canon 2321). 

The penalty is not incurred by the very violation of the 
laws forbidding bination and the saying of Mass after breaking 
the natural fast, but the ecclesiastical judge or superior is or- 
dered to inflict a vindicative penalty of suspension for a longer 
or shorter period in proportion to the gravity of the offense. 
The faculty of the bishop to allow bination on Sundays and 
holydays of obligation was discussed above (Volume I, n. 706). 
The permission to binate is given for the purpose of furnishing 
all the people with an opportunity of assisting at Mass on Sun- 
days and holydays of obligation: as it is not personal to the 

58 Pope Innocent XI, Const. ‘‘Ad nostri Apostolatus,’’ March 12, 1677; 


Alexander VIII, Const. Hy gts alias,’’ December 22, 1690; Benedict Scie 
Const. ‘‘ Ab augustissimo, ’’ March 5, 1744. 


474 A PRACTICAL COMMENTARY 


priest, a priest who takes the place of a pastor or assistant who 
has permission to binate may say two Masses. In unforeseen 
eases in which there is no time to recur to the bishop, permis- 
sion to binate may be presumed: for example, if, In a parish 
which on Sundays has two Masses and two priests, one priest 
should suddenly take ill, the other priest may binate ** provided 
no other priest can be secured with reasonable effort. If priests 
ean be secured for Sundays and holydays without great dif- 
ficulty, even the local Ordinary cannot give permission for bina- 
tion (cfr. Canon 806, § 2). 

9172. Even more severe than in the case of bination is the 
prohibition to say Mass after breaking the natural fast. That 
the Holy See is willing to grant to priests dispensation from 
the Eucharistic fast on Sundays and holydays of obligation, 
and to give the bishops faculties to dispense, has been already 
stated (efr. Volume I, n. 710). The following are cited as 
excuses from the law that the priest must say Mass fasting: 
(1) the obligation of completing the Holy Sacrifice if a priest col- 
lapses after the consecration of one or both species; (2) if by 
mistake the priest pours water only into the chalice at the 
Offertory, and does not notice the mistake until he tastes it at 
Communion; (3) some authors consider the necessity of admin- 
istering the Holy Viaticum as a sufficient reason to say Mass 
not fasting, supposing that Holy Communion could not be had 
any other way without great difficulty; (4) finally, the necessity 
of avoiding scandal among the people is also considered suffi- 
cient reason to say Mass after breaking the natural fast, because 
the obligation of the natural law to avoid publie scandal is con- 
sidered more serious than the positive ecclesiastical law to keep 
the Eucharistic fast.°> However, the local Ordinary has the right 
to judge, and if he does not take the same view of the excuses 
as the priest, but penalizes him for saying Mass after the break- 
ing of the fast, the priest is obliged to submit to the penalty. 


USuRPATION OF PRIESTLY FUNCTIONS 


9173. (1) If a person who is not an ordained priest pretends 
to say Mass or to hear sacramental confession, he incurs ipso facto 


54 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 78. 
55 Noldin, ‘‘Theol. Moral.,’’ III, n. 153. 


CANON 2322 475 


excommunication reserved in a special manner to the Holy See: 
if he is a layman, he shall also be deprived of any pension or 
office which he may have in the Church, and shall be punished 
with additional penalties in proportion to the gravity of his 
guilt; if he is a cleric, he shall be deposed. 

(2) If such a person usurps other priestly functions, he 
shall be punished by the Ordinary in proportion to the gravity 
of his guilt (Canon 2322). 

To pretend to say Mass (simulare) means that one who is 
not a priest conducts such ceremonies that the attendants, or 
some of them, are led to believe that Mass is really said. It is 
immaterial how far the deceiver performs the actual ceremonies 
and recites the prayers of the Mass; it suffices that his actions 
as a whole make the onlooker believe that he is saying Mass. 
If the man was known to all present as lacking priestly ordi- 
nation, his performance of the Mass ceremonies would not be 
a deception, and does not make him liable to the penalties of 
Canon 2322; it may be even entirely legitimate practice (e.g., 
the performance of the ceremonies of the Mass by seminarians 
who are soon to be ordained priests). A man who is known 
to all present as not being a priest, and who performs the 
ceremonies of Mass in the spirit of evil mockery or of sacrilegious 
derision, does not incur the penalties of Canon 2322: his crime 
may be more grievous than of the deceiver, but it is not the 
crime covered by Canon 2322. 

2174. A person who is not a priest and pretends to hear 
sacramental confessions, representing himself by word or action 
as a priest, becomes liable to the penalties of Canon 2322, if he 
listens to the accusation of sins, even though he does not go so 
far as to pretend to grant absolution : the hearing of the sacramen- 
tal confession (i.e., a confession made by a penitent to one whom 
he believes to be a priest for the purpose of obtaining sacra- 
mental pardon) suffices to incur the penalty. The penalties of 
Canon 2322 do not apply to men ordained to the priesthood, 
though they have been suspended, deposed, or degraded, because 
Canon 2322 speaks of persons only who do not possess the sacer- 
dotal character. 

2175. Finally, persons who usurp other sacerdotal functions 
(besides Holy Mass and hearing of confessions) are to be pun- 
ished by the Ordinary in proportion to their guilt. Sacerdotal 


476 A PRACTICAL COMMENTARY 


functions are those which are reserved to the order of the priest- 
hood either by the divine or the ecclesiastical law. It should be 
noted here that Canon 985, n. 7, inflicts an irregularity ex 
delicto on men who perform an act reserved to clerics in major 
orders without having received the order in question. 


BLASPHEMY AND PERJURY 


9176. Persons who commit blasphemy or perjure themselves 
outside of court, are to be punished at the discretion of the 
Ordinary, especially if they are clerics (Canon 2323). 

Spoken or written words of insult to God or His saints or 
sacred things are forbidden by the divine, and are here condemned 
by the ecclesiastical law. If a person calls upon God to witness 
the truth of his words, and it is proved that he deliberately 
made false statement under oath, he is to be punished by the 
Ordinary at his discretion. If one perjures himself in an ecclesi- 
astical court, he is to be punished by the judge in accordance 
with Canon 1743 (cfr. above, n. 1697). 


OFFENSES AGAINST THE LAWS ON Mass STIPENDS 


2177. Persons who offend against the precepts of Canons 827, 
828, 840, §1, shall be punished by the Ordinary in proportion 
to the gravity of their guilt, even with suspension or with 
deprivation of ecclesiastical benefice or office, or, in the case of 
lay persons, with excommunication, if the gravity of the offense 
ealls for it (Canon 2324). 

The former penalties latw sententre for offenses in connexion 
with Mass stipends, inflicted by the Constitution ‘‘Apostolice 
Sedis’’? of Pope Leo XIII, and by the Decree ‘¢Vigilanti,’’ of 
the Saered Congregation of the Council, May 25, 1893, and 
reaffirmed by the Decree ‘‘Ut debita’’ of the same Congregation, 
May 11, 1904, are abolished by the Code (cfr. Canon 6, n. ae 
The law now commands the Ordinary to punish the abuses con- 
demned in Canons 827, 828, and 840, §1, with penalties com- 
mensurate with the gravity of the transgressions (cfr. above, 
Volume I, nn. 726, 737). The offenses forbidden are: (1) every 
kind of negotiation or trading in Mass stipends (Canon 827) ; 
(2) the saying of fewer Masses than one agreed to say when 


CANONS 2323-2325 477 


accepting the stipends (Canon 828) ; (3) the retaining of part 
of the manual stipends or deriving any profit from them when 
one commits the saying of the Masses to other priests (Canon 
840). Since there is not an ecclesiastical offense unless the trans- 
gression is gravely sinful (cfr. Canon 2218, §2), one has to 
examine whether the violations of the prohibitions in the Canons 
here referred to are grievous transgressions. The forbidden 
negotiation or trading with Mass stipends is, in the opinion of 
Vermeersch-Creusen,*® a prohibition in which the smallness of 
the matter may excuse from mortal sin. To omit even one Mass 
which one is obliged to say for reason of a stipend seems to be 
a grave matter, for the act to which one hag by contract obliged 
oneself is a serious matter, irrespective of the amount of the 
stipend, This is the opinion of the majority of recent authors; 
others hold that it is probably not a grievous sin unless the 
stipend is large enough to amount to a grave matter.°’ The 
retaining of part of the stipend or the making of profit from 
stipends which one transfers to another priest, is either a mortal 
or a venial sin according to the smaller or larger gain illegally 
made. 


SUPERSTITION AND SACRILEGE 


2178. Persons who practise superstition or perpetrate a 
sacrilege are to be punished by the Ordinary in proportion to 
the gravity of their guilt, without prejudice to the penalties 
ordained by law against some acts of superstition or sacrilege 
‘Canon 2325). 

Superstition comprehends a great variety of unlawful prac- 
tices which are insulting to God and things sacred (e.g., divina- 
tion, fortune-telling, magic, witcherdft, or by whatever other 
name the forbidden delving into the supernatural may be ealled). 
In more recent times mesmerism, hypnotism and spiritism have 
become fertile sources of superstition. The abuse of magnetism 
(mesmerism) for superstitious purposes has been repeatedly con- 
demned by the Holy See; °* in connexion with the use of hyp- 
notism, the Holy See has cautioned those who employ it and 


6 ‘*Epitome,’? TIT, n. 524. 

57 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 106; Noldin, ‘‘Theol. 
Moral.,’’ III, n. 184. 

68 Holy Office, April 21, 1841; July 30, 1856. 


478 A PRACTICAL COMMENTARY 


submit to it for scientific purposes; the Holy See has also pro- 
tested against interference with the spirit world.°® Spiritism has 
indeed been condemned by Decree of the Holy Office, March 
30, 1898. 

Sacrilege consists in the unworthy use or treatment of sacred. 
things and sacred persons. Certain things are of their nature 
sacred (e.g., the Sacraments) ; others become so by blessing or 
consecration legitimately bestowed on things or places by au- 
thority of the Church, Persons are rendered sacred by ordi- 
nation or consecration or by other forms of dedication to the 
divine service by authority of the Church (e.g., by first tonsure, 
by religious profession ). 


MAKING AND SPREADING OF Fatse REwics 


2179. Persons who make false relies, or knowingly sell, dis- 
tribute or expose them for the public veneration of the faithful, 
incur ipso facto excommunication reserved to the Ordinary 
(Canon 2326). 

The fraudulent making of relics and wilful codperation in 
the selling, distributing, and exposing for public veneration of 
false relics is punished by Canon 2326, which does not deal with 
the sins of irreverence done against true relics by sale or other 
irreverent treatment. If a person who is in possession of a 
large relic of a saint or a beatified person should separate small 
particles of that relic and distribute them to others, he does not 
sneur the censure because he distributes genuine relics, but this 
should not be done, because it may be impossible subsequently 
to prove their genuineness. Though one is certain of the genu- 
ineness of a relic, Canon 1283 forbids their public veneration 
without the authentication of a Cardinal, or a local Ordinary, 
or another ecclesiastic authorized by Apostolic indult to au- 
thenticate relics (cfr. above, n. 1309). 


ProFit-MAKING THROUGH INDULGENCES 


9180. Persons who make profit from indulgences are Upso 
facto punished with excommunication reserved simply to the 
Apostolic See (Canon 2327). 


59 Holy Office, July 26, 189, 
y ) - 


CANONS 2326-2329 479 


The same offense was censured by the Constitution of Pope 
Pius V, ‘‘Etsi Dominici gregis,’’ February 8, 1567, and by the 
Constitution ‘‘Quam plenum,’’ J anuary 2, 1569. In the former 
law persons inferior to bishops were punished with excommuni- 
cation ; the Code comprehends all persons except Cardinals (efr. 
Canon 2227, §2). The offense forbidden is to make any gain 
or profit from the granting or the publication of indulgences 
(1.e., an explicit or implied sale of indulgences). The Code 
does not limit the penalty to the granting and publication, but 
commentators seem to be agreed on this point, therein fol- 
lowing the old law. 


VIOLATION OF CoRPSES OR GRAVES 


2181. Persons who violate the bodies or graves of the dead 
with a view to theft or any other evil purpose, shall be pun- 
ished with a personal interdict. They are apso facto branded 
with infamy, and, if they are clerics, shall be deposed in 
addition to the other penalties (Canon 2328 ). 

This Canon enforces the respect and honor due to the human 
body after death, both before and after burial. The Code does 
not say ‘‘bodies of the faithful,’’ but ‘‘the bodies of the dead’? 
—that is, human corpses generally, whether they are the bodies 
of baptized or unbaptized persons. Theft and other evil deeds, 
which violate the natural sanctity of the bodies and the oTaves, 
are forbidden. It may be necessary at times to dissect a human 
body for the sake of ascertaining the cause of death, or for the 
sake of science: of such purposes Canon 2328 does not speak, 
but only of evil purposes. 


VIOLATION OF CHURCHES AND CEMETERIES 


2182. Persons who defile the sanctity of a church or cemetery 
in the manner described in Canons 1172 and 1207, shall be 
punished by the Ordinary with interdict from entering a church 
and other appropriate penalties in proportion to the eravity of 
their guilt (Canon 2329). 

Canon 1172 enumerates the offenses by which a church is 
defiled or polluted, and Canon 1207 rules that the cemeteries are 
also defiled by the same offenses (cfr. above, nn, 1213, 1238). 


480 A PRACTICAL COMMENTARY 


TITLE XIII 


OF OFFENSES AGAINST ECCLESIASTICAL AUTHORI- 
TIES, PERSONS AND THINGS 


9183. With regard to the penalties enacted against offenses 
which may be committed in the election of the Supreme Pontiff, 
the only law to be considered is the Constitution of Pope Pius 
X ‘‘Vaeante Sede Apostolica,’? December 25, 1904 (Canon 
2330). 

In this Constitution there are eight excommunications late 
sententie, and there is one in the Constitution ‘‘Commissum 
Nobis,’’ January 20, 1904, which Constitution is confirmed by 
the Constitution ‘‘Vacante Sede Apostolica.”’ All these excom- 
munications are reserved to the Supreme Pontiff, so that nobody 
(not even the Major Penitentiary) can absolve from them except 
in danger of death.®° These excommunications are as follows: 

(1) the refusal of a Cardinal who is present in the Con- 
clave to appear for the voting after the bell calling them has 
been sounded the third time, unless he is impeded by sickness 
(Const. V. 8. A., n. 37); 

(2) the sending of letters or writings of any kind (printed 
or otherwise) from outside to persons present in the Conclave 
(including Cardinals) or the sending of such material from the 
Conclave to persons outside, without first submitting them for 
the examination of the Secretary of the Sacred College and the 
prelates appointed for the custody of the Conclave (Const. Vv. 
S. A., n. 50) ; 


60 Vermeersch-Creusen (Epitome, ITI, n. 530) consider all these excom- 
munications as late sententie, and this opinion is shared by Chelodi (Jus 
Penale, n. 68), Cappello (De Censuris, n. 184), and Cerato (Censure 
Vigentes, n. 85). However, Eichmann (Das Strafrecht, 146) considers the 
excommunication n. 7 as a penalty ferende sententiew, because the Consti- 
tution when speaking of this penalty does not state that it is late sen- 
tentie, or that it is incurred tpso facto, nor does it use an equivalent 
phrase. The authors who interpret it as an excommunication late sen- 
tentie rely on n. 51 of the Constitution ‘‘Vacante Sede Apostolica,’’ 
which rules that every excommunication imposed and decreed by this Con- 
stitution is reserved exclusively to the Supreme Pontiff, which, we believe, 
seems to indicate that the Constitution considers them excommunications 
late sententie. There is some controversy whether absolution tn casibus 
urgentioribus from these excommunications can be given in accordance 
with Canon 2254. The commentators are divided on the point, but it seems 
to us that the concession of the said Canon does not apply to the penalties 
of the Constitution against offenses committed in reference to the election 
of the Supreme Pontiff, because Canon 2330 states that in regard to them 
the Constitution exclusively governs. 


CANON 2330 481 


(3) violation of the secret in reference to all matters per- 
taining to the election of the Roman Pontiff and all other affairs 
done in Conclave or in the place of election (Const. V. S. A,, 
n. 51); 

(4) manifestation by Cardinals to their attendants or con- 
celavists or to any other persons of things which directly or 
indirectly have reference to the voting, and also of the acts or 
decrees enacted in the meetings of Cardinals either before or 
during the Conclave (Const. V. S. A., n. 53). Title I, Chapter 
II, nn. 6-11, of the Const. ‘‘Vacante Sede Apostolica’’ describes 
the meetings of Cardinals after the vacancy of the Apostolic 
See has occurred, both before and after they enter the Conclave; 

(5) simony committed in the election of the Roman Pontiff 
as condemned by former laws, notably the Constitution of Pope 
Julius II, ‘‘Cum tam divino,’”’ January 14, 1505; but the in- 
validity of the simoniacal election decreed by Pope Julius II 
(or by any other Pope) is revoked in order that there may be 
no pretext for attacking the validity of the election of the Su- 
preme Pontiff (Const. V. 8. A., n. 79) ; 

(6) the discussion of a successor of the Roman Pontiff, while 
he is still living and without consulting him; the promise to 
vote for such future candidate; and all deliberation and dis- 
cussion on this subject at private gatherings (Const. V. 8. A., 
MOU)? | 
(7) the acceptance by Cardinals or any other members of 
the Conclave of the réle of an intermediary of civil powers to 
present their ‘‘Veto’’ (or Exclusiva) of a possible candidate 
for the Supreme Pontificate; it is forbidden to present that veto 
even in the form of a mere desire or in any manner either to 
the College of Cardinals or to individual Cardinals, either before 
or during the Conclave (Const. ‘‘Commissum Nobis,’”’ and Const. 
\iPaie yes tray ries) aie | 

(8) agreements, compacts, promises or any other obligations 
made or assumed by Cardinals which may restrict their freedom 
of voting or not voting for some one or several candidates (Const. 
Ve ea tes c Tles on lis 

(9) an attack on the letters which the legitimately elected 
Roman Pontiff may have issued on any business whatsoever 
before his coronation (Const. V. S. A., n. 88), 


482 A PRACTICAL COMMENTARY 


DISOBEDIENCE TO ORDERS OF THE ROMAN PONTIFF OR THE 
PROPER ORDINARY, AND CONSPIRACY 


9184. Persons who stubbornly refuse to obey the legitimate 
precepts or prohibitions of the Roman Pontiff or their proper 
Ordinary shall be punished with appropriate penalties, not 
excluding censures, in proportion to the gravity of their ouilt 
(Canon 2331, § 1). 

Those who conspire against the authority of the Roman 
Pontiff or his legates or their own proper Ordinary, or against 
their legitimate commands, and also those who provoke sub- 
jects to disobedience towards them, shall be restrained by cen- 
sures and other penalties; if they are clerics, they shall be 
deprived of dignities, benefices and other offices; if they are 
religious, they shall be deprived of active and passive vote and 
of office (Canon 2331, § 2). 


APPEAL FRoM LAWS AND CoMMANDS OF THE ROMAN PONTIFF 
To AN CHiCUMENICAL CoUNCIL 


9185. Hach and every one of whatsoever state, degree or 
condition—whether king, bishop or Cardinal—who appeals from 
the laws, decrees, or mandates of the reigning Roman Pontiff 
to an (icumenical Council, are suspected of heresy, and incur 
ipso facto excommunication reserved in a special manner to the 
Apostolic See. Universities, colleges, chapters or other legal 
bodies, by whatsoever name they may be known, incur an inter- 
dict reserved in a special manner to the Apostolic See (Canon 
2332). 

The appeal from the authority of the Supreme Pontiff entails 
a denial of the principle enunciated by the Vatican Council 
that the Roman Pontiff has the supreme power of jurisdiction, 
independently of an CEcumenical Council. The bishops and 
Cardinals are specially mentioned to deprive them in this matter 
of the privilege of Canon 9997, Kings do not by law enjoy 
exemption from the canonical penalties, but, in virtue of Canon 
2227, the Supreme Pontiff alone can issue the declaration of a 
penalty incurred by supreme heads of states. With reference 
to innocent members of a community or college which has been 
interdicted, efr. Canon 22:76: 


CANONS 2331-2334 483 


RECOURSE TO THE Ctvir, Power AGAINST LETTERS oR ACTS OF THE 
APOSTOLIC SEE or Its LEGATES 


2186. Persons who have recourse to the laical power for the 
purpose of impeding any letters or acts issued by the Apostolic 
See or its legates, or who directly or indirectly prevent their 
promulgation or execution, or persons who injure or terrify be- 
cause of these letters or acts those to whom these documents 
are directed or others, incur ipso facto excommunication reserved 
in an especial manner to the Holy See (Canon 2333). 

The Chureh demands absolute independence from the civil 
powers in her sphere of action in the matters committed to her 
jurisdiction by Christ. Wherefore she strikes with excommuni- 
cation: (1) persons (laymen or clerics) who have recourse to 
the civil power to impede the letters and acts of the Holy See, 
by which term also the Sacred Congregations, Tribunals and 
Offices of the Holy See are meant (cfr. Canon 7); (2) the civil 
authorities who forbid the promulgation or execution of the said 
documents; (3) the civil authorities who injure or terrify per- 
sons because of these documents. 


INTERFERENCE WITH THE LIBERTY AND RIGHTS OF THE CHURCH 


2187. Excommunication reserved to the Holy See in a special 
manner is visited ipso facto upon the following: 

(1) those who issue laws, mandates or decrees against the 
liberty and rights of the Church ; 

(2) those who either directly or indirectly impede the exer- 
cise of ecclesiastical jurisdiction in the internal or external 
forum, having recourse for that purpose to any laical authority 
(Canon 2334), 

This prohibition and penalty completes the protest of the 
Church against all interference of the civil powers with the 
freedom and rights of the Church. This Canon punishes the 
civil authorities who abuse their power against the Church and 
those who request the civil authorities to interfere with the juris- 
diction of the Church. Clerics who are guilty of the offense 
spoken of in Canon 2334, are visited with additional penalties 
by Canon 2336, § 1. 


484 A PRACTICAL COMMENTARY 


JOINING THE FREEMASONS AND SIMILAR SOCIETIES 


9188. Persons who have themselves enrolled in the masonic 
sect, or in other associations of the same kind which plot against 
the Church or the legitimate civil powers, neur ipso facto ex- 
communication reserved simply to the Apostolic See (Canon 
2335). 

By his Constitution ‘‘In eminenti’’ of April 28, 1738, Pope 
Clement XII excommunicated those who joined the masons. To 
join the Fenians was forbidden under excommunication by the 
Holy Office on January 12, 1870. As the societies of the Car- 
bonari, of the Nihilists and of the Anarchists are generally 
considered to be organizations which of set purpose plot the 
destruction of either Church or State, persons who join them 
with knowledge of the penalty of Canon Law incur the excom- 
munication. There is considerable controversy whether enrol- 
ment in the socialistic, biblical, and clerical-liberal societies is 
forbidden under excommunication.*t A further difficulty in 
determining whether a society is of the nature described in 
Canon 2335 arises from the fact that many societies bear a name 
or title which marks them as purely social or beneficent organi- 
zations, while in fact they are allied with the masons. The 
difficulty is increased by the fact that some of those societies 
change their names from time to time. Since the law of the 
Code against freemasonry and similar organizations is the same 
as that of the Constitution ‘‘Apostolice Sedis’’ (except as to 
the persons favoring these societies and neglecting to denounce 
to the ecclesiastical authorities their secret leaders, which two 
phrases of the said Constitution are dropped by the Code), the 
text-books on the former Canon Law and moral theology may be 
consulted. For the United States the Third Plenary Council 
of Baltimore (nn. 254-255), with the approval of the Holy See, 
issued the practical injunction that nobody should declare a 
certain society as forbidden under excommunication, until the 
ease had been submitted to a committee consisting of all the 
archbishops, which the Council ereated for the purpose: if this 
committee could not reach a unanimous verdict, the matter was 
to be referred to the Holy See so that absolute uniformity of 


61 Cappello, ‘‘De censuris,’’ n. 105. 


CANON 2335 485 


discipline might be had on this matter in all the dioceses of the 
United States. 

2189. As to the absolution of freemasons and adherents of 
other societies forbidden under excommunication, the faculty to 
absolve in occult cases is granted to the Ordinaries by Canon 
2327, §2. In cases in which the membership in those societies 
is known to a number of persons, and may thus be called public 
(cfr. Canon 2197; above, n. 2028), the excommunication is re- 
served to the Holy See. The faculties given by the Holy See 
to the local Ordinaries in the United States empower them to 
absolve from this censure under condition that the penitent 
separates himself entirely from the sect or society and abjures 
it, that he denounces clerics and religious whom he knows to 
belong to such sects or societies (cfr. Canon 2336, §2), and 
that he surrenders to the one absolving him books, manuscripts, 
and insignia of the society which he possesses. These books, 
manuscripts and insignia are to be cautiously forwarded to the 
Holy Office as soon as possible, or, if this cannot be done for 
good and grave reasons, they are to be destroyed. <A salutary 
penance is to be imposed in proportion to the guilt, together 
with the obligation of going to confession and the duty to repair 
the scandal given.*? A former Instruction of the Holy Office 
declared that, if the formal renunciation of membership cannot 
be made to the sect or society without great danger, it may be 
delayed, provided there is no scandal given and no danger to 
the spiritual welfare of the penitent: the payment of dues and 
for very grave reasons attendance of the meetings might thus 
be continued until the danger arising from formal withdrawal 
is past.°* The local Ordinaries may communicate this faculty 
habitually to the vicars-forane (deans) and in individual cases 
to any confessor. In virtue of special circumstances, they may 
subdelegate some confessors for a period of time specified at 
their discretion. 

2190. The following societies have been forbidden without, 
however, the excommunication: The Independent Order of Good 
Templars, the Odd Fellows, the Sons of Temperance, the Knights 
of Pythias. The Holy Office declared on January 19, 1896, that 


62 Holy Office, March 7, 1883 (Acta S. Sedis, XVI, 21). 
63 January 19, 1896 (Hecl. Review, XIV, 361). Preuss, ‘‘A Study in 
American Freemasonry’’ (St. Louis, 1908). 


486 A PRACTICAL COMMENTARY 


passive membership may be retained under the following con- 
ditions: that the penitent joined the society in good faith (1.e., 
without knowing that it was forbidden) ; that no scandal is given 
by retaining passive membership; that it is impossible to with- 
draw from it without grave loss; that there is no danger of 
perversion to the penitent or his family, and especially that in 
case of death he shall not permit the society to bury him. For 
the sake of passing judgment on the conditions and for uni- 
formity of discipline, all cases of passive membership must be 
submitted either to the Apostolic Delegate or to the Archbishop 
of the respective ecclesiastical Province.” 


PENALTY or CLERICS AND RELIGIOUS WHO IMPEDE ECCLESIASTICAL 
LIBERTY, RIGHTS AND JURISDICTION BY RECOURSE TO CIVIL 
Power, AND OF CLERICS JOINING THE MASONIC OR SIMILAR 
ORGANIZATIONS 


9191. Clerics who have committed the offenses spoken of in 
Canons 2334-2335 shall, in addition to the penalties decreed in 
these Canons, be punished with suspension from or even depriva- 
tion of any benefice, office, dignity, pension or position which 
they may hold in the Church. Religious shall be deprived of 
office and active and passive vote, and visited with other pen- 
alties in accordance with their constitutions (Canon 2330; 09 1. 

Clerics and religious who join the masons or other similar 
societies shall, moreover, be denounced to the Sacred Congre- 
vation of the Holy Office (Canon 2336, § 2). 


Pastors AND OTHER PRIESTS WHO INCITE THE PEOPLE TO 
INTERFERE WITH ECCLESIASTICAL JURISDICTION 


9192. If, for the purpose of hindering the exercise of ecclesi- 
astical jurisdiction, a pastor shall dare to stir up the populace, 
to promote public subscriptions in his favor, to stir up the 
people by speeches or writings, or to take other similar actions, 
he shall be punished at the discretion of the Ordinary with 
penalties proportioned to his euilt, and, if necessary, even with 
suspension (Canon 2387, § 1). 

In the same manner the Ordinary shall punish a priest who 


64 Holy Office, June 26, 1913. 


CANONS 2336-2338 487 


excites the multitude in any manner to prevent a priest who 
has been legitimately nominated as pastor or administrator from 
entering a parish (Canon 2337, § 2). 

Canon 2337, § 1, has special reference to the case of removal 
of a pastor from his parish. The Code points out the manner 
of procedure (cfr. Canons 2147-2162) in the removal of pastors, 
and the means of defence which may be adopted by a pastor 
who believes himself treated unjustly. He may undoubtedly 
request that some witnesses are heard in his favor, and, if the 
decision is pronounced against him, an irremovable pastor may 
demand another hearing (cfr. Canon 2153). Against the final 
decree of removal there is no other resort than recourse to the 
Sacred Congregation of the Council. If a pastor stirs up the 
people of the parish and induces them to resist the orders of 
the local Ordinary, he is guilty of disobedience to the ecclesi- 
astical authority, even though his removal was unjust. For the 
sake of the public welfare, the Church forbids him to employ 
the means of defence condemned in Canon 2337, § 1. 

If any priest arouses the people to prevent a pastor or ad- 
ministrator legitimately appointed by the local Ordinary from 
taking possession of his office, the priest is guilty of interfer- 
ence with the exercise of ecclesiastical jurisdiction and makes 
himself liable for severe punishments. 


UNAUTHORIZED ABSOLUTION FROM EXCOMMUNICATION, ParrTICct- 
PATION IN CRIME OF AN EHacommunicatus Vitandus, VioLa- 
TION OF CENSURES, LIABILITY FOR INTERDICT ON A PLACE OR 
A Lrcau Bopy 


2193. Persons who presume to absolve without the proper 
faculty from an excommunication late sententie@ reserved to the 
Apostolic See in a most special or in a special manner, incur 
ipso facto excommunication simply reserved to the Apostolic 
See (Canon 2338, § 1). 

Persons who extend any aid or favor to an excommunicatus 
vitandus in reference to the offense for reason of which he was 
excommunicated, and clerics who knowingly and of their own 
accord participate in divine services with the vitandus, and admit 
him to divine services, automatically incur excommunication 
reserved simply to the Apostolic See (Canon 2338, § 2). 


488 A PRACTICAL COMMENTARY 


Persons who knowingly ‘celebrate or have others celebrate 
divine services in interdicted places, or persons who for the 
celebration of divine services forbidden by a censure admit cler- 
ics excommunicated, interdicted, or suspended by a declaratory or 
condemnatory sentence, incur automatically an interdict from 
entering a church, until they have made due satisfaction in the 
opinion of him whose sentence they spurned (Canon 2338, § 3). 

Persons who have been the cause of the placing of an inter- 
dict on a locality or on a community or college, automatically 
incur a personal interdict (Canon 2338, § 4). 

Canon 2338, § 1, punishes ‘‘presumption’’ in absolving from 
the censures there specified. Canon 2229, § 2, explains the 
meaning of presumption in connection with censures. The co- 
operation in §2 takes place after the person has become an 
excommunicatus vitandus: as this Canon does not treat of co- 
operation in the commission of the offense itself, the Code here 
supposes that the excommunicated person perseveres in the same 
offense, and is assisted or supported in his sinful perseverance 
by others. Whether clerics who deliberately and of their own 
will communicate with an excommunicatus vitandus in divine 
services, incur the excommunication by that fact alone, or 
whether they incur it only by communicating with him by ad- 
mitting to divine services (et ipsum in divinis offictis recipr- 
entes), depends on how the et in the above phrase is interpreted, 
whether disjunctive or copulative. Most commentators, basing 
their opinion on the former law, consider it as copulative, so 
that ‘‘ communicantes et recipientes’’ together constitute the 
offense of forbidden communicato in divinis of clerics with an 
excommunicatus vitandus. The admitting to divine service seems 
to mean that a cleric who is an excommunicatus vitandus is 
admitted to active performance of the divina officia (cfr. Canon 
2256, n. 1), not merely admitted to passive assistance. The 
admitting cleric must be one who, in virtue of his office, has 
the right to permit clerics to exercise sacred functions in a 
place (e.g., the pastor or rector of a church). 

The codperation of clerics in the violation of local interdicts 
and of censures is punished in Canon 2338, § 3, with a vindica- 
tive penalty of interdict from entering a church, which lasts 
until the authority who interdicted the place or who issued the 
declaratory or condemnatory sentence of the censure has passed 


CANONS 2338-2339 489 


judgment on the condign satisfaction for the offense. Indirectly, 
therefore, this penalty is reserved to that authority. 

Canon 2338, § 4, rules that persons who were the cause of 
the interdict on a place or a community or college are auto- 
matically under personal interdict. The consequences of a per- 
sonal interdict are declared by Canon 2275. This personal inter- 
dict is not reserved. 


VIOLATIONS OF THE LAWS ON DEPRIVATION OF CHRISTIAN BURIAL 


2194. Persons who, in violation of the prohibition of Canon 
1240, dare to order or force the ecclesiastical burial of 
infidels, apostates from the faith, or heretics, schismatics, or 
other persons, either excommunicated or interdicted, incur ex- 
communication late sententiw not reserved; persons who of their 
own accord give ecclesiastical burial to the above-mentioned, 
ineur an interdict from entering a church reserved to the 
Ordinary (Canon 2339). 

The penalty is inflicted on persons who have the power to 
order or force the Christian burial of the bodies of persons 
enumerated in this Canon, The interference with the rights of 
the Church by the civil authorities in ordering or foreing the 
bishop or pastor to violate the law of the Church is punished 
automatically with non-reserved excommunication. The terms 
mandare seu cogere seem to suggest that the mandantes and the 
cogentes are the same actors; a few commentators are of the 
opinion that private individuals who force the ecclesiastical 
burial by threats, violence, ete., are also excommunicated. Com- 
mentators on the Code—and indeed commentators on the Con- 
stitution ‘‘ Apostolice Sedis,’’? where the same penalty is visited 
on those who command or force the ecclesiastical burial of 
heretics and persons excommunicated or interdicted by name— 
do not agree as to what is meant by ecclesiastical burial. Canon 
1204 states that ecclesiastical burial consists in the transfer of 
the body to church, the exequies held over it in church, and 
the interment in a place destined for the burial of the faithful. 
Canon 2219 states that, in penalties, the more benign interpre- 
tation is to be made. As the transfer of the body to church 
in the manner of a liturgical function is not in vogue in the 
United States, there remain only the exequies and the burial in 


490 A PRACTICAL COMMENTARY 


consecrated or blessed ground. The burial in a Catholic ceme- 
tery may also not be possible—e.g., in places where the Catholics 
have not a cemetery of their own. It may, therefore, be said 
with Chelodi*®> that ordinarily the three elements are necessary 
to constitute ecclesiastical burial, unless the circumstances or 
the conditions of places make one or the other element of Chris- 
tian burial impossible or of no account. 

Persons who of their own free will grant Christian burial 
to those enumerated in Canon 2339 thereby incur interdict from 
entering a church. This interdict is incurred by ecclesiastics 
only, who in virtue of their office have the right to concede 
ecclesiastical burial; laymen have no such right. 

Canon 2339 mentions the persons whose ecclesiastical burial 
may not be insisted on or conceded under the penalties enumer- 
ated. Reference is made to Canon 1240, §1, in which these 
same persons and some other classes are enumerated. Sole®® 
seems to maintain that the penalties of Canon 2339 apply to 
the ecclesiastical burial of all persons enumerated in Canon 
1240, but many commentators restrict the penalties of Canon 
9339 to those persons who are mentioned in the Canon, be- 
cause these are specifically enumerated, whereas Canon 1240 
enumerates in general all persons to whom ecclesiastical burial 
is to be denied. The reference to Canon 1240, §1, in Canon 
9339 is given, we believe, to indicate that the penalties for 
forcing ecclesiastical burial or conceding it apply only when 
the persons enumerated in Canon 2339 have not given any signs 
of repentance before death. 


OBDURACY IN CENSURES 


2195. If a person with obstinate mind remains under the 
censure of excommunication for one year, he is suspected of 
heresy (Canon 2340, § 1). 

If a cleric remains under censure of suspension for half a 
year, he shall be gravely admonished; if he does not abandon 
his obstinacy after the lapse of a month from such admonition, 
he shall be deprived of any benefices or offices that he may 
possess (Canon 2340, § 2). 

65 Jus Penale, n. 73. 


66‘‘De Delictis et Ponis,’’? n. 367; Vermeersch-Creusen, ‘‘ Epitome,’’ 
ITI, n. 538. 


CANONS 2340-2341 491 


The suspicion of heresy (cfr. Canon 2315) is treated by the 
Code as a separate offense. The Council of Trent *’ had the 
same law as Canon 2340, §1. Note that the Code speaks of a 
cleric who remains under censure of suspension for more than 
six months, because the censure is imposed by the Church to 
move the guilty person to repentance, and, as soon as he repents 
and complies with the demands of his superiors, he has a right 
to absolution. If the suspension is inflicted by the way of a 
vindicative penalty, repentance and satisfaction do not give him 
a right to dispensation from the penalty: this penalty lasts for 
the period for which it was inflicted, or, if imposed indefinitely, 
it lasts at the discretion of the superior who imposed it. 


VIOLATION OF THE PRIVILEGE OF THE ECCLESIASTICAL FORUM 


2196. If, in violation of the precept of Canon 120, anyone 
dares to cite before a laical judge one of the Cardinals, Legates 
of the Apostolic See, or major officials of the Roman Curia in 
affairs pertaining to their office, or one’s own proper Ordinary, 
he incurs automatically excommunication reserved in a special 
manner to the Apostolic See. If anyone dares to cite another 
bishop—even a mere titular bishop, abbot or prelate nullius— 
or the supreme superior of any religious organization of papal 
law, he automatically incurs excommunication reserved simply 
to the Apostolic See. Finally, if a cleric cites any other person 
who enjoys the prwvilegium fort before a laical judge without 
the previous permission from the local Ordinary, he automati- 
cally ineurs suspension from office reserved to the Ordinary; 
if a lay person commits this offense, he shall be punished with 
condign penalties in proportion to his guilt by the proper Ordi- 
nary (Canon 2341). 

Canon 120 explains the privilege of the forum: it states that 
ecclesiastics may be sued in an ecclesiastical court only, and 
what ecclesiastical authorities have the right to grant permission 
to a plaintiff to bring suit in the secular courts (cfr. above, 
Volume I, n. 92). If a person with full knowledge of this law 
and the penalties for its violation institutes suit against a per- 
son who, by the law of the Church, enjoys the privilege of the 
forum, he incurs one of the penalties of Canon 2341, varying 


67 Sessio XXV, eap. 3, De Reform, 


492 A PRACTICAL COMMENTARY 


according to the various degrees of the ecclesiastical persons 
there enumerated. The major officials of the Roman Curia °° 
have the same special protection as 1s accorded to Cardinals, 
Legates of the Holy See and the proper Ordinary, and thus 
may not be sued in the secular courts in connection with affairs 
of their office. In other affairs they have the common protection 
of ecclesiastical persons according to their rank. If a person 
demands that a cleric be called as witness, and has the summons 
issued to him, he does not incur the censures of Canon 2341. 
Before the promulgation of the Code there was controversy 
among canonists * as to whether the summoning of clerics as 
witnesses was punished with excommunication specially reserved 
to the Holy See. The Motu proprio of Pope Pius X, ‘‘Quantavis 
diligentia,’’ October 9, 1911, reads: ‘‘Quicumque privatorum 

_ nullo potestatis ecclesiastice permissu, ad tribunal laicorum 
vocent personas quasvis ecclesiasticas, ibique adesse compel- 
— lant.’?7° Though the Code punishes with censures those only 
who sue clerics before laical judges without the permission of 
the authorities of the Church, it is nevertheless sinful to force 
them to appear as witnesses without obtaining the permission 
of the Church in view of the exemption which the Church be- 
stows on clerics in this matter. A judge who by the law of 
the country is forced to summon to his court ecclesiastics sued 
by others, does not incur the penalties of Canon 23841, because 
the Holy Office, in an Instruction to a certain Vicar Apostolic 
(February 1, 1871; Collectanea de Prop. Fide, II, n: 1364) ex- 
plained that the term ‘“eogentes’’ of the censure in the Consti- 
tution ‘‘ Apostolic Sedis’’ indicates that the excommunication 
does not affect subordinates even though they are judges, but 
those who without being forced by anyone drag elerics before 
the secular tribunals or force others to do so. 

The privilege of the forum may, as Canon 120 indicates, be 
modified (nisi aliter pro locis particularibus legitime proviswm 
fuerit). In the United States the government has never recog- 
nized the exemption of clerics from being sued in its courts, 
and the Third Council of Baltimore says that, in order to uphold 


68 The major officials of the Roman Curia are enumerated in the Con- 
stitution ‘‘Sapienti consilio’’ of Pope Pius X, June 29, 1908 (Acta Ap. 
Sedis, I, 78, sqq.). 

69 Sole, ‘‘De Delictis et Penis,’’ n. 372. 

70 Acta Ap. Sedis, III, 555. 


CANON 2342 493 


ecclesiastical immunity as much as is possible among us, the 
priests are strictly forbidden to sue another priest or cleric, even 
in temporal affairs, in the secular courts without previous writ- 
ten permission of the bishop. The Council does not forbid lay 
persons to sue clerics in the secular courts,’! and Ayrinhac is 
of the opinion (which seems to be a correct conclusion from 
the Third Plenary Council of Baltimore) that lay persons are 
implicitly granted permission to sue clerics in the secular 
courts.” 


VIOLATION OF THE LAW OF ENCLOSURE 


2197. Excommunication simply reserved to the Apostolic See 
is automatically incurred: 

(1) by persons of whatever class, condition or sex who violate 
the enclosure of nuns by entering their monasteries without 
legitimate permission, and also by persons who introduce or 
admit them. If they are clerics, they shall, moreover, be sus- 
pended for a period of time to be fixed by the Ordinary in 
proportion to the gravity of their guilt; 

(2) by women who violate the enclosure of religious men in 
solemn vows, and by the superiors and others, whosoever they 
may be, who admit or introduce women of any age; moreover, 
the religious who introduce or admit them shall be deprived of 
any office which they may have and of active and passive vote; 

(3) by nuns who unlawfully leave the enclosure in violation 
of the precept of Canon 601 (Canon 2342). 

The law forbids men and women to enter the enclosure of 
Sisters in solemn vows. There are some Sisterhoods in Europe 
whose rule prescribed solemn vows, but these have been reduced 
to simple vows by authority of the Holy See. Such Sisterhoods 
do not come under Canon 2342.77 Boys and girls under the age 
of puberty (that is, under fourteen and twelve years respect- 
ively) do not incur the censure by entering the enclosure of 
nuns, but adults who induce, invite, or admit them do not escape 
the penalty of Canon 2342 (cfr. Canon 2230). 

The enclosure of men‘in solemn vows is violated by the 
entrance of women and oirls, and if the superior or any other 

71 Decreta Conc. Plen. Balt. III, n. 84 


72 Penal Legislation, n. 279. 
73 Vermeersch-Creusen, ‘‘Epitome,’’ n. 541. 


494 A PRACTICAL COMMENTARY 


person, either of the community or an outsider, orders, forces or 
assists them to enter, or admits or invites them to enter, the 
censure is incurred, no matter how young the girl may be (cutus- 
cumque etatis). 

Nuns who leave the enclosure without due permission given 
by law in certain cases or by the Holy See (cfr. Canon 601), 
incur excommunication. The Code says ‘‘moniales’’: conse- 
quently, although Sisters who have not yet made solemn pro- 
fession, novices and postulants are obliged to observe the law 
of enclosure, they do not incur the censure by violating this 
law. In opposition to the opinion of the majority of commenta- 
tors on the Code, Sole ™ maintains that temporarily professed 
Sisters and postulants in monasteries of nuns are also subject 
to the excommunication, if they unlawfully leave the enclosure. 
On the law of enclosure, cfr. Volume I, nn. 509-513. 


VIOLATION OF THE Privilegium Canonis 


2198. Persons who lay violent hands on the person of the 
Roman Pontiff: 

(1) automatically incur excommunication reserved in a most . 
special manner to the Apostolic See, and wpso facto become ex- 
communicate vitandr; 3 

(2) are automatically branded with infamy ; 

(3) if they are clerics, they must be degraded (Canon 
2343, § 1). 

Persons who lay violent hands on the person of a Cardinal 
or a Legate of the Roman Pontiff: 

(1) automatically incur excommunication reserved in a spe- 
cial manner to the Apostolic See; 

(2) are ipso facto branded with infamy ; 

(3) must be deprived of benefices, offices, dignities, pensions 
and any position which they may have in the Church (Canon 
2343, § 2). 

Persons who lay violent hands on the person of a patriarch, 
archbishop, or bishop (even a titular bishop), automatically ineur 
excommunication reserved in a special manner to the Apostolic 
See (Canon 2343, § 3). 

Persons who lay violent hands on the person of other clerics 


74 De Delictis et Penis, nu. 374. 


CANON 2343 495 


or on religious men or women, automatically incur excommuni- 
cation reserved to the proper Ordinary, who shall, moreover, 
punish them with other appropriate penalties in his discretion 
(Canon 2343, § 4). 

Canon 119 states that those who inflict bodily injury on 
clerics are guilty of sacrilege. The protection against bodily 
injury of clerics and religious is called the ‘‘privilegium can- 
onis.’’ This term is taken from Canon 15 ‘‘Si quis suadente 
diabolo,’’ of the Second Lateran Council, held under Pope Inno- 
cent II (11389), which declared that persons who do bodily injury 
to clerics or religious automatically incur excommunication re- 
served to the Apostolic See. The Constitution ‘‘ Apostolice 
Sedis’’ punished with excommunication reserved to the Apostolic 
See in a special manner persons who inflicted bodily injury 
on Cardinals, patriarchs, archbishops, bishops, or Legates of 
the Apostolic See, and explicitly stated that the codperators in 
the attack on such persons were liable to the same penalty. 
As the Code does not explicitly mention the codperators, a few 
commentators on the Code are led to the conclusion that persons 
who participate in the attack on ecclesiastical dignitaries and 
common clerics do not incur the penalties of Canon 2343.7 
However, the Code in Canon 2231 establishes the general prin- 
ciple for all offenses and their penalties, when it states that, 
where several persons concur in the commission of an offense 
in the manner specified in Canon 2209, §§ 1-3, all are liable to 
the same penalty unless the law explicitly states otherwise. 
Wherefore, there can be no doubt that persons who cooperate 
in attacking a cleric in the manner described in Canon 2209, 
§§ 1-3, are liable to the penalties of Canon 2343. 


VERBAL INJURY TO CLERICS 


2199. Any person who in public periodicals, speeches, or 
pamphlets, has injured (1.e., calumniated) either directly or 
indirectly the Roman Pontiff, the Legates of the Roman Pontiff, 
the Sacred Congregations at Rome, the Tribunals of the Apostolic 
See and their major officials, or his proper Ordinary, or who 
has excited animosity or hatred against their acts, decrees, deci- 


75 Cappello, ‘‘De censuris,’’? n. 59; Ayrinhac, ‘‘Penal Legislation,’’ 
n. 288; Augustine, ‘‘Commentary,’’ VIII, 378. 


496 A PRACTICAL COMMENTARY 


sions or sentences, shall—not only at the instance of the party, 
but also ex officio—be compelled by the Ordinary even with cen- 
sures to make satisfaction, and shall be punished with appro- 
priate penalties and penances in proportion to the gravity of 
his guilt and the necessity of repairing the scandal (Canon 
2344). 

The ‘‘injurie’’ of Canon 2344 include all offensive, insult- 
ing remarks, all slanders and revelations of secret faults or 
defects, and finally all agitation against the official actions of 
the above-mentioned ecclesiastical authorities. Private conversa- 
tion injurious to the person or office of the said dignitaries is 
not mentioned in Canon 2344, but, if through the often-repeated 
guilty conversation such talk becomes public, the Ordinary has 
the right to proceed against such persons, even though their 
offense does not fall under the terms of Canon 2344—‘*‘ public 
periodicals, speeches or pamphlets’’ (cfr. Canon 2222), 


USURPATION OF THE GOODS AND RIGHTS OF THE RoMAN CHURCH 


2200. Persons who usurp or retain, personally or through 
others, goods and rights pertaining to the Roman Church, auto- 
matically incur excommunication reserved in a special manner 
to the Apostolic See. If they are clerics, they shall also be 
deprived of dignities, benefices, offices, and pensions, and shall 
be declared disqualified to obtain them (Canon 2345). 

Most commentators on the Code hold that this Canon refers 
exclusively to the temporal dominions and rights of the former 
Papal States. The Constitution ‘‘ Apostolic Sedis,’? which had 
the same censure against the above acts of injustice, explicitly 
mentioned codperators. Some commentators on the Code state 
that the codperators are not comprehended in Canon 2345, be- 
cause usurpation and detention of the goods and rights only 
are punished. Nevertheless, the Code punishes with the same 
penalty all codperators in the usurpation or detention, if they 
cooperate in the manner described in Canon 2209, §§ 1-3 (efr. 
Canon 2231), 


CANONS 2344-2346 497 


USURPATION AND DETENTION OF TEMPORAL ECCLESIASTICAL 
Goops AND PROPERTY 


2201. If anyone, either in person or through others, pre- 
sumes to convert to his own use and usurp ecclesiastical goods 
of any kind, whether personal or real, or to prevent those to 
whom such goods rightfully belong from receiving the fruits or 
income from ecclesiastical goods, they shall be subject to excom- 
munication until they have made complete restitution of the 
goods, have removed the above-mentioned obstacles to the re- 
ception of the revenue or income by those entitled to it, and 
have afterwards obtained absolution from the Apostolic See. 
If a patron of a church or church property should be guilty of 
the above offense, he is automatically deprived of his right 
of patronage. A cleric who has been guilty of this offense 
or has consented to it shall, in addition, be deprived 
of all benefices whatsoever, shall be rendered disqualified to 
obtain any others, and shall be suspended from the exercise of 
his orders at the discretion of the Ordinary, even after he has 
made complete satisfaction and obtained absolution (Canon 
2346). 

The theft of ecclesiastical goods is not meant here, but rather 
the appropriation of ecclesiastical property to one’s own benefit, 
as though one had a right to it (i.e., the confiscation and spolia- 
tion of the ecclesiastical goods in the name of law and on the 
basis of a pretended right to them). Codperation in the usurpa- 
tion and detention are to be judged according to Canons 2231 
and 2209, §§ 1-3. | 


ILLEGAL ALIENATION OF ECCLESIASTICAL Goops 


2202. In addition to the nullity of the act and the obliga- 
tion—which is to be enforced even with censures—to make resti- 
tution of the goods unlawfully acquired and the duty to repair 
the damages which may have been caused, a person who presumes 
to alienate ecclesiastical goods or gives his consent thereto in 
violation of the precepts of Canons 534 and 1532, shall be 
punished as follows: 

(1) if there is question of goods of a value of not over one 


498 A PRACTICAL COMMENTARY 


thousand franes, he shall be punished with appropriate penalties 
by the legitimate ecclesiastical superior ; 

(2) if the goods have a value of over one thousand and less 
than thirty thousand franes, a patron who is guilty of illegal 
alienation shall be deprived of the right of patronage; an ad- 
ministrator of his office of administration; a religious Superior 
or religious @conomus of his office and of eligibility to acquire 
any other office, in addition to other appropriate penalties to 
be imposed by the Superiors; an Ordinary and other clerics who 
hold an office, benefice, dignity, or position in the Church, shall 
pay double the amount to the church or pious institute which 
has been injured; other clerics shall be suspended for a length 
of time to be determined by the Ordinary ; 

(3) if the beneplacitum of the Holy See demanded by the 
above-mentioned Canons (5384 and 1532) has been knowingly 
omitted, all who are in any manner guilty, either as givers or 
receivers of the goods or by consenting to the alienation, auto- 
matically incur in addition excommunication which is not re- 
served (Canon 2347). 

On the alienation of ecclesiastical goods generally, cfr. Canons 
1530-1534 (above, nn. 1523-1527); on the alienation of goods 
possessed by religious organizations, cfr. Canon 534 (Volume I, 
nn. 414-416). 


Ungust WITHHOLDING oF Goops FRom Pious INSTITUTES 


2203. Any person who either by donation, or last will, or 
as a trustee, comes into possession of a legacy or donation 
destined for pious institutes, and neglects to fulfill his obliga- 
tion, shall be forced to do so by the Ordinary even with censures 
(Canon 2348). 

The ‘‘cause pix’? which we render by pious institutes com- 
prehend all works of religion and Christian charity, e.g., 
churches, monasteries and convents, schools for the poor, hospi- 
tals, and other houses of charity and mercy conducted under 
ecclesiastical authority. In virtue of Canon 1515, the local 
Ordinary is the legal executor of all bequests and donations made 
in favor of pious institutes (efr. Canons 1515-1516; above, nn. 
1508-1509), 


CANONS 2347-2350 499 


REFUSAL OF LEGITIMATE CONTRIBUTIONS AND TAXES 


2204. Persons who refuse to make the legitimate contribu- 
tions due by precept of Canons 463 and 1507, shall be pun- 
ished at the discretion of the Ordinary until they have satis- 
fied their obligation (Canon 2849). With reference to the con- 
tributions or fees, efr. our commentary on the above-mentioned 
Canons (Volume I, n. 339; above, n. 1496). 


TITLE XIV 


OF OFFENSES AGAINST LIFE, LIBERTY, PROPERTY, 
GOOD REPUTE AND CHRISTIAN MORALITY 


ABORTION, SUICIDE AND ATTEMPTED SELF-DESTRUCTION 


2205. Persons who procure abortion, the mother not excepted, 
automatically incur excommunication reserved to the Ordinary 
at the moment the crime takes effect; if they are clerics, they 
shall also be deposed (Canon 2350, § 1). 

Persons who lay hands on themselves shall, if death ensues, 
be deprived of ecclesiastical burial in accordance with the pre- 
cept of Canon 1240, n. 3. If they do not die, they shall 
be barred from legal ecclesiastical actions, and, if they are cler- 
ics, they shall be suspended for a period of time to be determined 
by the Ordinary, and deprived of benefices or offices to which 
the care of souls in either the internal or external forum is 
attached (Canon 2350, § 2). 

The nature of the crime of abortion and the various ways 
in which it may be effected are discussed by all canonists and 
moralists who comment on the penalties of the Constitution 
‘* Apostolice Sedis.’’ The Code does not change the former law 
on abortion, but it decides the former controversy among can- 
onists whether the mother who procures abortion in her own 
ease incurs the penalty, by stating explicitly that the mother is 
not excepted from the penalty. As to accomplices in the crime, 
there was also much uncertainty, but the Code gives one uni- 
versal rule about participation in crimes forbidden under pen- 
alty of the law by stating that all participants who share in 
the execution of the crime in the manner pointed out in Canon 


500 A PRACTICAL COMMENTARY 


2209, §§ 1-3, incur the same penalty as the principal perpetra- 
tors (efr. Canon 2231). There is some controversy among 
commentators of the Code as to whether grave fear excuses from 
the censure (e.g., when an unmarried woman is driven to abor- 
tion by the fear of exposing her guilt, or if the husband by 
threats or continued molestation forces the wife to the crime) .”® 
From Canon 2229, § 3, n. 3, one may justly conclude that grave 
fear does excuse from penalties latw sententiw, unless the crime 
amounts to the contempt of the faith or prejudices the spir- 
itual welfare of the public. As, however, abortion is usually 
a secret crime against the life of the unborn child, it cannot be 
said that it belongs to the class of crimes which do public injury 
to the spiritual welfare of the people. 

Suicide and attempted suicide are forbidden under penal 
sanctions. Canon 2212 states that when the attempt of a 
erime is visited in law with a special penalty, the attempt con- 
stitutes a true offense. Canon 2350, § 2, makes the attempt of 
suicide an offense in law by specifying the penalties for such 
an attempt. The Code does not inflict a penalty late sententie 
on suicide or attempted suicide, but commits the judgment of 
the culpability of the act to the respective Ordinaries. 


DUEL 


2206. Besides the penalty of Canon 1240, n. 4, persons who 
fight or merely challenge to a duel, or accept the challenge, 
or aid or favor it in any manner, or purposely are present as 
spectators, or permit it, or do not in so far as they can forbid 
it, automatically incur excommunication reserved simply to the 
Apostolic See, no matter what their dignity may be. The prin- 
cipals and their seconds are in addition automatically branded 
with infamy (Canon 2351). 

The Constitution ‘‘ Apostolic Sedis’’ pronounced the same 
censures against the principals, accomplices, spectators, ete., of 
a duel, and adds the penalty of infamy against the duelling 
parties and their seconds. The Constitution ‘‘Detestabilem”’ of 
Pope Benedict XIV, November 10, 1752, decreed that all duel- 
lists who died from a wound received in the duel should be 
deprived of ecclesiastical burial, though they had given signs of 


76 Vermeersch-Creusen, ‘‘Epitome,’’ IIT, n. 551. 


CANONS 2351-2353 501 


repentance and been absolved from the sin and censure. The 
Code permits ecclesiastical burial, if signs of repentance are 
given (cfr. Canon 1240). 


UnNgust CoERCING oF PERSONS TO EMBRACE THE CLERICAL OR 
RELIGIOUS STATES 


2207. Excommunication, not reserved, is automatically vis- 
ited upon all persons, of whatever dignity, who in any manner 
force either a man to embrace the clerical state or man or woman 
to enter a religious organization, or to make religious profes- 
sion of solemn or simple, perpetual or temporary vows (Canon 
2302). 

The Church demands that the candidates for the clerical and 
the religious state be absolutely free in offering their lives to 
the service of God and the Church. Canon 214 rules that, if 
a man proves that he was constrained by grave fear to receive 
major orders, he can obtain release from the obligations of the 
major orders and return to secular life. Canons 542 and 572 
state that the reception into the novitiate and the profession of 
vows are invalid, if either of these steps was taken because of 
grave fear. 


ABDUCTION 


2208. Men who, with a view to marriage or for the gratifica- 
tion of lust, carry off a woman by force or deceit against her 
will, or a woman of minor age who consents to elope without 
the knowledge or against the objection of her parents or guar- 
dian, are automatically deprived of the right to legal ecclesiasti- 
cal actions, and shall moreover be chastized with other penalties 
in proportion to the gravity of their guilt (Canon 2353). On 
the marriage impediment of abduction, cfr. Canon 1074 (Volume 
I, n. 1061). In the case of the impediment of marriage, the 
forcible detention of a woman in the place of her residence or 
in a place to which she came of her own free will, is equivalent 
to abduction; in the penalty, however, abduction must be taken 
in its natural and obvious meaning. 


502 A PRACTICAL COMMENTARY 


OFFENSES AGAINST Lire, LIBERTY AND PROPERTY 


2209. A lay person who has been legitimately declared guilty 
of the crime of homicide, of abduction of minors of either sex, 
of selling a human being as a slave or for any other evil pur- 
pose, of usury, robbery, theft under aggravating circumstances 
changing the species of sin (e.g., theft of things sacred) or ordi- 
nary theft in a very grave matter, of incendiarism or malicious 
and very grievous destruction of things, of grave mutilation or 
wounding or violence, shall automatically be deprived of the 
right to legal ecclesiastical actions and of every position which 
he may have in the Church, besides the obligation of repairing 
the damages (Canon 2354, § 1). 

If a cleric has committed any of the crimes enumerated in 
the first paragraph of this Canon, he shall be punished by the 
ecclesiastical court in proportion to his guilt with penanees, cen- 
sures, deprivation of office, benefice and dignity, and even with 
deposition, if the circumstances demand it; if he has been guilty 
of culpable homicide, he shall be degraded (Canon 2354, § 2). 
Regarding the deposition and degradation of clerics, Canons 
2308, § 3, and 2305 rule that these penalties may be inflicted 
only for crimes to which the law attaches those penalties. 


VERBAL INJURY TO OTHERS 


2210. A person who inflicts injury upon another, not by 
bodily attack, but by words or writings or in any other manner, 
or who damages his good reputation, may not only be forced 
in accordance with Canons 1618 and 1938 to make due satis- 
faction and repair the damages done, but may in addition be 
punished with appropriate penalties and penances. If the of- 
fender be a cleric, and the gravity of the offense demands it, he 
may be punished even with suspension or removal from office 
and benefice (Canon 2355). 


BIGAMY 


2211. Persons guilty of bigamy—that is, an attempted mar- 
riage, even by a mere civil ceremony, by persons validly married 
—are automatically branded with infamy. If they do not heed 


CANONS 2354-2359 503 


the admonition of the Ordinary, but continue to live in the 
unlawful union, they are to be punished, according to the grav- 
ity of their guilt, either with excommunication or personal inter- 
dict (Canon 2356). 


OFFENSES AGAINST CHASTITY 


2212. Lay persons who have been legitimately declared guilty 
of the commission of crimes against the sixth commandment 
with minors under sixteen years of age, or of rape, sodomy, 
incest, or traffic in vice (lenocinium), are automatically branded 
with infamy, besides incurring the other penalties which the 
Ordinary may think proper to impose (Canon 2357, §1). 

Persons who have committed a public crime of adultery, or 
who publicly live in concubinage, or who have been legitimately 
condemned of other offenses against the sixth commandment, 
shall be excluded from legal ecclesiastical acts until they have 
given signs of true repentance (Canon 2357, § 2). 

2213. Clerics in minor orders who commit an offense against 
the sixth commandment shall be punished in proportion to the 
gravity of their guilt, and even with discharge from the clerical 
state, if the circumstances of the offense merit this penalty; 
they are in addition liable to the penalties of Canon 2357, if 
the offense is one of those specified in that Canon (Canon 2358). 

2214. Clerics in major orders, either secular or religious, who 
are guilty of concubinage and have not heeded the admonition 
to amend, shall be forced to abandon the illicit cohabitation and 
to repair the scandal by suspension a divims and deprivation 
of the income of their office, benefice, or dignity, with the observ- 
ance of the precepts of Canons 2176-2181 (Canon 2359, §1). 

If they have committed an offense against the sixth com- 
mandment with minors under sixteen years of age, or been guilty 
of adultery, rape, bestiality, sodomy, traffic in vice, or incest with 
blood-relatives or relations by marriage in the first degree, they 
shall be suspended, declared infamous, deprived of every office, 
benefice, dignity, or position that they may hold, and in more 
grievous cases they shall be deposed (Canon 2359, § 2). 

If they have sinned against the sixth commandment in other 
ways, they shall be corrected with appropriate penalties in pro- 
portion to the gravity of their sin, even with deprivation of 


504 A PRACTICAL COMMENTARY 


office or benefice, especially if they have the care of souls (Canon 
2359, § 3). 


TITLE XV 


OF FORGERY AND OTHER FALSEHOODS 


FORGERY OF PAPAL DOCUMENTS 


2215. All persons who forge or falsify letters, decrees or 
reseripts of the Apostolic See, or with full knowledge of the 
forgery make use of the letters, decrees or rescripts, automati- 
cally incur excommunication reserved in a special manner to 
the Apostolic See (Canon 2860, § 1). 

Clerics who are guilty of the above-mentioned offense shall 
in addition be punished with other penalties, which may even 
extend to deprivation of benefice, office, dignity and ecclesiastical 
pension. Religious shall be deprived of all offices which they 
hold in the religious organization and of an active and passive 
vote, and are lable in addition to other penalties decreed by 
the constitutions of the respective organization (Canon 2360). 

The law of the Code protects the official acts or documents 
not only of the Supreme Pontiff himself but also of the Sacred 
Congregations and the Tribunals and Offices of the Holy See 
against forgery and mutilation, and the wilful use of forged or 
mutilated documents of the Apostolic See. The Constitution 
“Apostolic Sedis’’ protected with penal sanctions the docu- 
ments of the Supreme Pontiff only. 


FRAuD IN PETITION FoR RESCRIPTS 


2216. If, in the petition for a reseript addressed to the Apos- 
tolic See or to a local Ordinary, any person fraudulently or 
deceitfully withholds the truth or states a falsehood, he may be 
punished by his Ordinary in proportion to the gravity of guilt, 
without prejudice to the concession of Canons 45 and 1054 
(Canon 2361). 


ForGEeRY OF ECCLESIASTICAL DOCUMENTS AND RECORDS 


2217. Persons who forge or falsify ecclesiastical letters or 
acts, either public or private, or make use of them with full 


CANONS 23860-2363 505 


knowledge of the forgery, shall be punished in proportion to 
the gravity of guilt, without prejudice to the precepts of Canon 
2406, § 1 (Canon 2362). Here are included all documents, rec- 
ords, reports, certificates, and other ecclesiastical instruments, 
publie or private, issued by ecclesiastical authority. Under the 
name of private ecclesiastical acts or documents come, for ex- 
ample, deeds of purchase, sale of ecclesiastical property, docu- 
ments of concession of privileges, favors, and dispensations, 
delivered to and possessed by private persons. 


Fase ACCUSATION OF SOLICITATION AGAINST CONFESSOR 


2218. If anyone, either in person or through others, falsely 
denounces a confessor to the superiors as guilty of solicitation, 
he automatically incurs excommunication reserved in a special 
manner to the Apostolic See. From this penalty he can in no 
case be absolved, until he has formally retracted the false de- 
nunciation and has, in so far as he is able, repaired the damages, 
if any were caused by his crime. Moreover, severe and lasting 
penances are to be imposed. The precept of Canon 894, which 
reserves the sin of false denunciation to the Apostolic See if 
perchance the censure of Canon 2363 was not incurred through 
ignorance or other excuse admitted in law, is not affected by 
this Canon (Canon 2363). 

Because of the severe penalties visited on a confessor who 
abuses his office to solicit penitents to sin of impurity (cfr. 
Canons 904 and 2368), the Holy See sternly condemns the false 
accusation of a confessor to the ecclesiastical superiors (who, in 
this matter, are the Holy Office and the local Ordinaries) ; the 
judices ecclesiastici of Canon 894 (cfr. Volume I, n. 805) seem 
to be identical with the superiores of Canon 2363.77 The abso- 
lution from the censure or the sin of false denunciation cannot 
be given, until the penitent has retracted the calumny against 
the confessor by a formal statement made either to the Holy 
Office or to the local Ordinary or to a priest delegated by either. 
In danger of death the penitent may indeed be absolved, but he 
must repair the calumny either by declaring before two witnesses 
that he falsely denounced the confessor or by a written state- 

77 Vermeersch-Creusen, ‘‘Epitome,’’ III, n. 565. Cerato, ‘‘De Delicto 


Sollicitationis,’’ n. 129, understands Canon 894 of strictly speaking judicial 
denunciation and Canon 2363 of non-judicial denunciation, 


506 A PRACTICAL COMMENTARY 


ment signed by him; if he were not willing to undo the harm 
caused by his calumny, he would not be in a proper disposition 
to receive absolution. Commentators discuss the question 
whether absolution can be given by an ordinary confessor in 
more urgent cases (cfr. Canon 2254) before the penitent has 
made a formal retraction of his calumny. It seems that, when 
the penitent has incurred the censure of Canon 2363, the con- 
cession of Canon 2254 may be applied; but the confessor who 
absolves must enforce the obligation of the penitent to make 
retraction. If the penitent has not incurred the censure by his 
false denunciation but only committed a sin reserved to the Holy 
See (cfr. Canon 894), Canon 900 may be apphed, which states 
that every reservation of sins ceases in the cases mentioned there 
(cfr. Volume I, n. 813). Cerato 78 holds that Canon 900 applies 
to episcopal reserved sins only, because, he Says, it 1s evident 
from the context and the subject matter of Canon 900 that it 
has reference to episcopal reserved sing only; other commenta- 
tors 7° apply Canon 900 to all reserved sins without distinction, 
which seems justified by the wording of the law. 

2219. Another question raised by commentators in connection 
with the reservation of false denunciation is whether ignorance 
excuses (1) from the censure, and (2) from the reservation of 
the sin. All agree that ignorance of the censure of Canon 2363 
excuses from it, provided it is not crass or supine ignorance 
(cfr. Canon 2229, § 3, n.1). Whether ignorance of the reserva- 
tion of a sin excuses from the reservation is much disputed by 
canonists, both those who wrote before and those who wrote 
after the promulgation of the Code. Some authors eall the 
reservation of the sin of false denunciation a medicinal penalty, 
and therefore apply to it the principle of Canon 2229, § 3, n. 1, 
that ignorance which is not crass or supine excuse from the 
penalty. The reason they give is that, in the Constitution 
‘“‘Sacramentum Poenitentie,’? Pope Benedict XIV ealls the 
reservation in question a penalty ordained by law for the pur- 
pose of discouraging the commission of the sin of false denuncia- 
tion. Nevertheless, inasmuch as the Code ealls it a restriction 
of the power of the confessor, not a penalty (cfr. Canon 893), 


78 De Delicto Sollicitationis, n. 131, and n. 4. 
79 Vermeersch-Creusen, ‘‘Epitome,’’ II, n. 179; De Smet, ‘‘De abso- 
lutione complicis et sollicitatione,’’ n. 137. 


CANONS 2364-2366 507 


it is immaterial whether the penitent knows or does not know 
of the reservation, for it directly affects the power of absolu- 
tion of the confessor. 


TITLE XVI 


OF OFFENSES COMMITTED IN THE ADMINISTRATION 
OR RECEPTION OF ORDERS AND OTHER SACRAMENTS 


2220. The minister who dares to administer the Sacraments 
to persons who are forbidden either by the divine or the ecclesi- 
astical law to receive them, shall be suspended from the admin- 
istration of the Sacraments for a period of time to be prudently 
determined by the Ordinary, and punished with other penalties 
in proportion to the gravity of his guilt, without prejudice to 
the special penalties decreed by law for certain offenses of this 
kind (Canon 2364). 


ATTEMPT TO ADMINISTER CONFIRMATION 


2221. A priest who, neither by law nor by concession of the 
Roman Pontiff, has the faculty to administer the Sacrament of 
Confirmation, and yet dares to administer this sacrament, shall 
be suspended. A priest who presumes to administer Confirma- 
tion beyond the limits of the faculty conceded to him, is auto- 
matically deprived of such faculty (Canon 2365). On the 
faculty to administer Confirmation given by law, efr. Canons 
239, §1, n. 23 (Cardinals), and 782 (abbots and prelates nullius, 
vicars and prefects Apostolic). 


HEARING OF CONFESSIONS WITHOUT FACULTIES 


2222. A priest who presumes to hear sacramental confessions 
without the necessary jurisdiction is automatically suspended 
a divinis; he who presumes to absolve from reserved sins (with- 
out the necessary jurisdiction over those sins), is automatically 
suspended from the hearing of confessions (Canon 2366). 

If the priest hears confessions when he has a positive and 
probable doubt (cfr. Canon 209) as to whether he has faculties, 
or whether they extend to a certain reserved case, he may hear 
confessions, or absolve from reserved sins, for the law supplies 


508 A PRACTICAL COMMENTARY 


jurisdiction ; the same is to be said in the case of common error 
(cfr. Volume I, nn. 161-162). Since the penalties of Canon 
2366 are not contracted by a priest unless he acts presumptu- 
ously, ignorance of the prohibition or the penalty (provided it 
be not affected ignorance) and all circumstances which impede 
full knowledge or deliberation excuse him from the penalties 
(cfr. Canon 2229, §2). The penalties are not reserved: where- 
fore, if they have been incurred, every confessor can absolve 
from them. : 


ABSOLUTION OF ONE’s ACCOMPLICE IN SINS oF ImpPpuriIry 


2223. A priest who absolves or pretends to absolve his ac- 
complice in a sin of impurity automatically ineurs exeommuni- 
cation reserved in a most special manner to the Apostolic See. 
Even if the absolution is given in a case of danger of death, 
the priest becomes liable for the penalty, if another priest, 
though not approved for confessions, can hear the dying per- 
son’s confession without occasloning grave infamy or scandal. 
If the dying person refuses to confess to another priest, the 
sacerdos complex may absolve his accomplice without incurring 
the excommunication (Canon 2367, § 1). 

The same penalty is incurred by a priest who absolves or 
pretends to absolve his accomplice, who does not even confess 
the sin of complicity from which he (or she) has not yet been 
absolved for the reason that the confessarius complex has di- 
rectly or indirectly induced the penitent to omit confessing the 
sin (Canon 2367, § 2). 

The Code practically repeats the law of the Constitution 
‘‘ Apostolic Sedis,’’? together with several declarations of the 
Holy See on the censure incurred by a priest who absolves or 
pretends to absolve his accomplice in a sin of impurity. Conse- 
quently, the commentaries of canonists and moralists on the 
Constitution ‘‘Apostolicw Sedis’’ may be consulted for further 
details. The excommunication of this Constitution was specially 
reserved to the Holy See, and the Code reserves it in a most 
special manner. The first general law, which forbade under 
penalty of cpso facto excommunication the absolution of one’s 
own accomplice, was enacted by Pope Benedict XIV in his 
Constitution ‘‘Sacramentum Penitentix,’? That document said 


CANONS 2367-2369 509 


that the censure was incurred by the priest who dares or pre- 
sumes to absolve. The Constitution ‘‘Apostolice Sedis’’ and 
the Code have dropped the terms dare or presume, wherefore 
erass and supine ignorance of the law or its penalty does not 
excuse from the censure, but ignorance which is not crass or 
supine does excuse (cfr. Canon 2229, §3, n. 1). The crass or 
supine ignorance is caused by the grave and culpable negligence 
in acquiring due knowledge (cfr. Commentary, II, n. 2069). 

2224, The priest who commits the crime of solicitation speci- 
fied in Canon 904 shall be suspended from the celebration of 
Mass and from hearing sacramental confessions, and, if the 
gravity of his offense demands, shall be declared disqualified for 
the hearing of confessions. He shall also be deprived of all 
benefices and dignities, and of an active and passive vote, and 
be declared disqualified for all these, and in more serious cases 
he shall be punished with degradation (Canon 2368, §1). 

The faithful who knowingly neglect to denounce within one 
month a priest by whom they were solicited, as prescribed by 
Canon 904, automatically incur excommunication not reserved 
to anyone, but they may not be absolved until after they have 
satisfied their obligation, or have solemnly promised that they 
will satisfy it (Canon 2368, § 2). 

The obligation to denounce the priest and the censure in- 
curred by neglect of the denunciation are taken from the law 
of the Constitution ‘‘Apostolice Sedis’’ and the Constitution 
‘‘Sacramentum Peenitentie’’ of Pope Benedict XIV. Since the 
Code does not in any manner modify the former law, the com- 
mentaries of canonists and moralists on the said Constitutions 
may be consulted to ascertain the circumstances under which 
the penitent is obliged to denounce the priest who has solicited 
to a sin of impurity in connection with confession. 


VIOLATION OF THE SEAL OF CONFESSION 


9225. A confessor who presumes to violate directly the seal 
of confession, shall incur excommunication reserved in a most 
special manner to the Apostolic See; he who violates it indi- 
rectly only, shall be liable to the penalties of Canon 2368, § 1 
(Canon 2369, § 1). 

Whosoever rashly violates the precept of Canon 889, 


510 A PRACTICAL COMMENTARY 


shall be punished with a salutary penalty, even excommunica- 
tion, In proportion to his guilt (Canon 2369, § 2). 

The direct and indirect violation of the seal of confession 
is explained by all text-books of moral theology. Though the 
obligation to keep the secret extends to all persons who in any 
manner obtain knowledge of sacramental confession (e.¢., per- 
sons standing near the confessional who hear what the penitent 
confesses), the penalty of excommunication for the violation of 
the secret of confession falls on the confessor only; other per- 
sons who violate the secret of confession, are in accordance with 
Canon 2369, § 2, to be punished by the Ordinary in proportion 
to their guilt. A penitent who divulges his «own confession 
does not, of course, violate the secret: of confession, for both the 
divine and the ecclesiastical law protect his confession as a 
private right; he may sacrifice that right if he so desires. 

The censure of excommunication for the direct violation of 
the seal of confession is new in the Code, though the Church 
has always punished most severely any violations of the seal of 
confession.*®° The phrase ‘‘manet excommunicatio specialissimo 
modo Sedi Apostolice reservata’’ is unusual in denoting an 
excommunication which is incurred automatically. The verb 
‘“‘manet’’ does not necessarily indicate automatic excommunica- 
tion, but the fact that the Code makes the censure reserved to 
the Apostolic See goes to show that automatic excommunication 
is meant, for, as Vermeersch-Creusen remark,*? it is foreign to 
ecclesiastical court procedure to reserve penalties ferend@ sen- 
tentie to the Holy See. The commentators on the Code almost 
unanimously teach that the excommunication is incurred auto- 
matically. 


CONSECRATION OF BISHOP WITHOUT PAPAL MANDATE 


2226. A bishop who consecrates another bishop, the assistant 
bishops, or the priests who in place of the assistant bishops 
assist the consecrator, and the newly consecrated bishop who | 
receives consecration without an Apostolic mandate in violation 
of the precept of Canon 953, are all automatically suspended 


80 Decretales Gregor IX, ¢ 12, De penitentiis et remissionibus, lib. 
V, tit. 38. 
81 Hpitome, III, n. 408. 


CANONS 2370-2371 511 


until the Apostolic See shall have relieved them from the pen- 
alty (Canon 2370). 

The Sacred Congregation of the Council, December 15, 1657, 
declared that it was not sufficient that one has knowledge of 
the granting of the Apostolic mandate and of the fact that it 
has been mailed,®? and Canon 53 speaking of rescripts generally 
rules that nobody may execute a rescript before he has received 
the document, and has examined into its authenticity and in- 
tegrity, unless an official notice has been given in advance by 
the authority of the author of the rescript. 


SIMONY IN THE ADMINISTRATION AND RECEPTION OF THE 
SACRAMENTS 


2227. All persons, including those of the episcopal dignity, 
who through simony knowingly promote a man or are promoted 
to orders, or who administer or receive other sacraments through 
simony, are suspected of heresy; clerics, moreover, incur sus- 
pension reserved to the Apostolic See (Canon 2371). 

Canons 726-730 contain a definition of the nature of simony 
(cfr. Volume I, nn. 613-617) ; the crime of suspicion of heresy 
is defined in Canon 2315 (cfr, above, n. 2159). The administra- 
tion and reception of first tonsure, minor and major orders, or 
any of the sacraments through simony, makes the administering 
bishop or priest and the recipient liable to the penalties ferendw 
sententie of Canon 2315 (suspicion of heresy), and bishops and 
clerics automatically incur suspension reserved to the Apostolic 
See. In accordance with Canon 2227, bishops do not incur 
the late sententwe penalties of suspension and interdict unless 
they are explicitly mentioned as in Canon 2371. 


RECEPTION OF ORDERS FROM UNWORTHY PRELATES 


2228. All persons who presume to receive orders from a pre- 
late who has been excommunicated, suspended or interdicted by 
a declaratory or condemnatory sentence, or from a notorious 
apostate, heretic or schismatic, automatically incur suspension 
a diwinis reserved to the Apostolic See. Any person who has 
been ordained in good faith by such men, forfeits the right to 


82 Sole, ‘‘De Delictis et Penis,’’ n. 428. 


512 A PRACTICAL COMMENTARY 


exercise the order thus received until he obtains a dispensation 
from the prohibition (Canon 2372). 

The recipient of orders does not incur the suspension unless 
he has full knowledge of the excommunication, suspension or 
interdict which has been pronounced against the ordaining min- 
ister, or unless he is fully aware of the apostasy, heresy. or 
schism of the minister. If the recipient of orders acted in good 
faith, he does not indeed ineur a penalty, because no penalty is 
inflicted without guilt; but he incurs an impediment to the exer- 
cise of the order or orders which he received from the above-men- 
tioned men. The impediment can be dispensed from by his own 
Ordinary, because the Code does not reserve the dispensation 
to the Holy See. The Constitution ‘‘ Apostolicae Sedis’’ pro- 
hibited the reception of orders from the above ministers under 
pain of suspension from the order received, and forbade the 
exercise of the orders received in good faith, until the recipients 
were dispensed from the impediment. Neither censure nor im- 
pediment was reserved to the Apostolic See by the Constitution. 
If a person who has been nominated bishop by the Apostolic 
See, or whose election, presentation, etce., has been confirmed 
by the Apostolic See, should have himself consecrated by any 
of the men mentioned in Canon 2372, he would not incur the 
penalty of that Canon, because by the Apostolic appointment 
he becomes a bishop, and bishops do not incur ipso facto pen- 
alties of suspension or interdict unless they are explicitly men- 
tioned (cfr. Canon 2227, § 2).88 


Inuicir CONFERRING OF ORDERS 


2229. Suspension from the conferring of orders for one year 
reserved to the Apostolic See is automatically incurred: 

(1) by one who, in violation of the precept of Canon 955, 
ordains a subject of another Ordinary without the dimissorial 
letters of his proper Ordinary; 

(2) by one who, in violation of Canons 993, n. 4, and 994, 
ordains his own subject who has lived elsewhere for such a 
length of time that he could have contracted there a canonical 
impediment (i.e., without obtaining the testimonial letters from 
the local Ordinary of such place or places) ; 


83 Eichmann, ‘‘Das Strafrecht,’’ 208. 


CANONS 2372-2374 513 


(3) by one who, in violation of the precept of Canon 974, 
n. 7, ordains a man to major orders without a canonical title; 

(4) by one who ordains a religious belonging to a religious 
house outside the territory of the ordaining prelate, even though 
the candidate presents dimissorial letters of his own proper su- 
perior, unless it has been legitimately proved that there is one of 
the reasons mentioned in Canon 966 for which the religious su- 
perior may present his subjects to other than the bishop of the 
place where the religious house in which the candidate resides is 
located; if a religious organization has a privilege in virtue of 
which the superiors are free to send their candidates to any 
bishop, such privilege remains intact (Canon 2373). For ex- 
planation of the various points of Canon 2373, cfr. the Canons 
here referred to. 


Tuuicir RECEPTION OF ORDERS 


2230. A man who maliciousiy presents himself for ordina- 
tion without dimissorial letters or with forged letters, or before 
he has attained the canonical age, or for ordination per saltum 
(1.e., without having received the previous order or orders; e.g., 
for subdeaconship without having received all of the minor 
orders), is automatically suspended from the order unlawfully 
received. A man who presents himself for ordination without 
the testimonial letters or when he is under a censure, irregu- 
larity or other impediment, shall be chastized with severe pen- 
alties according to the circumstances of the case (Canon 2374). 

On dimissorial letters, cfr. Canons 955, 958-963, 964; on 
the canonical age, Canons 974-975; on receiving the various 
orders in proper succession, Canon 977; on the requisite testi- 
monial letters, Canons 993-1001. If the candidate has incurred 
a censure by an occult offense, he is not forbidden to present 
himself for ordination, if by staying away from the ordination 
he would betray his offense (cfr. Canon 2232). The same may 
be said of an irregularity incurred by an occult offense, for, 
though an irregularity from crime is not a penalty properly 
so called, it is nevertheless inflicted after the manner of a pen- 
alty.* 


84 Vermeersch-Creusen, ‘‘Epitome,’’ III, n. 426. 


514 A PRACTICAL COMMENTARY 


Mrxep MARRIAGE WITHOUT DISPENSATION 


9231. Catholics who dare to contract a mixed marriage, 
though validly, without a dispensation of the Church, are auto- 
matically deprived of the right to exercise legal ecclesiastical 
acts and to receive the sacramentals, until they have obtained 
a dispensation from the penalties from the Ordinary (Canon 
2375). 

A marriage of a Catholic with a baptized non-Catholic, it 
contracted without the presence of an authorized priest, is ordi- 
narily invalid (efr. Canon 1094), with the exception of the cases 
described in Canons 1098-1099. If a Catholic and a baptized 
non-Catholic deceive the priest by representing themselves as 
Catholics, and are married by a duly authorized priest, the 
marriage without dispensation from the impediment of mixed 
religion is valid, but the Catholie who knew of the prohibition 
of mixed marriages and the penalties for neglecting to obtain 
-the dispensation becomes liable to the punishments of Canon 
9375, from which the Ordinary can release him. It need not 
be stated that the promises which the Church demands in mar- 
riages with non-Catholies, baptized or unbaptized, have to be 
made by the parties before the Catholic can be absolved from 
the grievous violation of the law of the Church. If the non- 
Catholic party absolutely refuses to make the promises, but the 
Catholic is sincerely repentant and promises to do all in his 
power to raise the children as Catholics, the Ordinary can allow 
the Catholic to receive the Sacraments.*° 


TITLE XVII 


OF OFFENSES AGAINST THE OBLIGATIONS PROPER 
TO THE CLERICAL AND RELIGIOUS STATES 


2232. Priests who have neither been dispensed by the Ordi- 
nary nor are legitimately impeded from making the examina- 
tion spoken of in Canon 130 (yearly examination for three years 
after ordination to the priesthood), and who refuse to submit 
to the examination, shall be forced to do so by the Ordinary 
with appropriate penalties (Canon 2376). 


85 Sole, ‘‘De Delictis et Peenis,’’ n. 436. 





CANONS 2375-2378 515 


ABSENCE FROM THE DIOCESAN CONFERENCES OF PRIESTS 


2233. Priests who, in violation of the precept of Canon 131, 
stubbornly refuse to attend the conferences, shall be pun- 
ished at the discretion of the Ordinary; if they are religious 
who have the faculties of the diocese, but do not have the care 
of souls (as pastors or in positions held equivalent in law to 
the pastorate), the Ordinary shall suspend them from hearing 
the confessions of seculars (Canon 2377). 

On the diocesan conferences of priests, cfr. Canon 131 
(Volume I, n. 100). In discussing that Canon we had expressed 
the opinion followed by some canonists that the assistants of 
the religious pastor also come under the heading of those who 
have the care of souls (curam animarum habentes). It seems, 
however, that those priests only are meant by that phrase who 
have the care of souls in the official capacity of a pastor or of 
men held equivalent in law to pastors (cfr. Canon 451).8° Stub- 
born refusal (contumaces) implies that a canonical admonition 
(cfr. Canon 2309) to appear at the conference has preceded. 


CARELESSNESS IN THE PERFORMANCE OF RITES AND CEREMONIES 


2234, Clerics in major orders who gravely neglect the rites 
and ceremonies prescribed by the Church in the sacred min- 
istry, and who despite admonition do not amend, shall be sus- 
pended in proportion to the gravity of guilt in the individual 
cases (Canon 2378). 

The dignity of the public cult offered to God by the Church 
through her ministers demands a faithful and devout perform- 
ance of the sacred rites and ceremonies. Consequently, the 
Church strictly forbids her ministers to introduce into the pub- 
le worship prayers and ceremonies of their own, and demands 
rigid adherence to the prescribed prayers and ceremonies. All 
arbitrary modification of the prescribed rites is condemned by 
the Church as an abuse, and the Ordinaries have the duty of 
stopping such abuses. The more frequent and the more im- 
portant such arbitrary deviations from the prescribed rites and 
ceremonies are, the more serious is the offense. 


86 Fanfani, ‘‘De iure religiosorum’’ (ed. 1925), n. 453; Vermeersch- 
Creusen, ‘‘ Epitome,’’ I, n. 203, III, n. 581. 


516 A PRACTICAL COMMENTARY 


DISCARDING THE CLERICAL GARB 


9235. Clerics who, in violation of the precept of Canon 136, 
do not wear the. clerical garb and tonsure, shall be severely 
admonished. If they have not obeyed within a month from 
receiving the admonition, clerics in minor orders automatically 
eease to be clerics in accordance with Canon 186. Clerics 
in major orders, besides forfeiting ipso facto and without the 
need of any declaration every office which they hold (efr. Canon 
188, n. 7), shall be suspended from the orders which they have 
received: if they openly enter upon a course of life incom- 
patible with the clerical state, they shall be given a second 
admonition, and, if they spurn this warning, shall after the 
lapse of three months from the second admonition be deposed 
(Canon 2379). 


Crerics ENGAGING IN WorLDLY BusINESS ENTERPRISES 
FORBIDDEN TO THE CLERGY 


9936. Clerics or religious who either in person or through 
others engage in trading and business in violation of the precept 
of Canon 142, shall be punished by the Ordinary with appro- 
priate penalties in proportion to the gravity of their guilt 
(Canon 2380). For explanation of trading and business for- 
bidden to clerics, cfr. Canon 142 (Volume I, n. 113). The 
penalties of the former law * against missionaries engaging in 
secular business or trade have been dropped by the Code. 


VIOLATION OF THE LAW oF RESIDENCE 


9937. All who hold an office, benefice, or dignity, to which 
the obligation of residence is attached, and who absent them- 
selves unlawfully, incur the following penalties: 

(1) they are automatically deprived of all the fruits or 
revenue of their benefice or office in proportion to the time of 
illegitimate absence, and they must give that part of the income 
to the Ordinary, who shall devote it to some church, or pious 
institute, or the poor; 


st Sacred Congregation of the Propaganda, March 29, 1873 (Collect. 
de Prop, Fide, Il, n. 1398). 





CANONS 2379-2381 517 


(2) they shall be deprived of the office, benefice, dignity, in 
accordance with Canons 2168-2175 (Canon 2381). 

The obligation of residence binds Cardinals (Canon 288), 
local Ordinaries (bishops, Canon 338; Apostolic vicars and pre- 
feets, Canon 301; administrators Apostolic, Canon 315; prelates 
nullius, Canon 323), coadjutors of bishops (Canon 354), vicars- 
capitular (Canon 440), canons (Canon 418), vicars-forane or 
deans (Canon 448), pastors (Canon 465), priests who take the 
place of the pastor (Canons 471-475), assistants of a pastor 
(Canon 476). Canon 2381 states that all who illegitimately 
absent themselves lose right and title to the income or salary 
(i.e., to the portion which corresponds to the time of absence), 
and must give it to the Ordinary to be devoted to the purposes 
specified in the Canon. If the Ordinary violates the law of 
residence by absenting himself for six months without legitimate 
excuse, the archbishop of the respective ecclesiastical province 
is obliged to denounce him to the Apostolic See (cfr. Canon 
338). Some commentators maintain that a cleric who has vio- 
lated the law of residence need not forward to the bishop the 
portion of the income of his office or benefice which he has 
forfeited by his offense, but may himself devote it to the poor 
or some charitable institute, if he would defame himself by 
forwarding the money to the Ordinary.*® It may, perhaps, be 
admitted that, if the Ordinary does not know of the violation, 
the priest is not obliged to confess his unlawful absence (cfr. 
Canon 2232), but may dispose of the income which he cannot 
appropriate as Canon 2381 directs. However, the fact of his 
illegitimate absence can be easily ascertained by the Ordinary, 
and, if he does discover it and orders him to surrender the 
income in proportion to his absence, the priest cannot plead 
satisfaction of his obligation made by himself, for the bishop 
can insist on satisfaction being made in the manner appointed 
by the Code. The manner of procedure against clerics violating 
the obligation of residence is outlined in Canons 2168-2175. 


NEGLIGENCE OF PASTOR IN THE CARE oF SOULS 


9238. If a pastor gravely neglects the administration of the 
sacraments, care of the sick, instruction of the children and the 


88 Vermeersch-Creusen, ‘‘Epitome,’’ IIT, n. 585. 


518 A PRACTICAL COMMENTARY 5 


people, preaching on Sundays and other holydays of obligation, 
or the custody of the parochial church, the Blessed Sacrament 
and the holy oils, the Ordinary shall proceed against him in 
the manner specified in Canons 2182-2185 (Canon 2382). 


CARELESSNESS OF PASTOR IN KEEPING THE PAROCHIAL RECORDS 


9939. A pastor who does not keep or preserve the parochial 
records diligently, as prescribed by law, shall be punished by 
his proper Ordinary in proportion to the gravity of his guilt 
(Canon 2383). 

Canon 470 demands that the pastor keep the records of the 
baptisms, confirmations, marriages and deaths, and the census 
records (cfr. Volume I, n. 348). 


NEGLIGENCE IN OFFICE OF THE CANON THEOLOGIAN AND 
CANON PENITENTIARY 


9940. The canon theologian and canon penitentiary who are 
neglectful in their attendance to the duties of their office shall 
be compelled to do their duty by proceeding against them 
gradually with admonitions, threats of penalties, and deprivation 
of part of their salaries which is to be assigned to those who 
do the work in their place. If they have persisted in their 
neglect for a whole year, the Ordinary shall after previous 
admonition punish them with suspension from their benefice ; 
if they continue in their neglect for six more months, he shall 
deprive them of the benefice itself (Canon 2384). 


APOSTASY FROM RELIGIOUS LIFE 


9941. Without prejudice to the precepts of Canon 646, a 
religious who apostatizes from the religious organization auto- 
matically imeurs excommunication reserved to his proper major 
superior, or, if the religious organization is a laical community 
or non-exempt, to the local Ordinary of the place where the 
apostate religious stays ; he is also deprived of the right to legal 
ecclesiastical acts and all the privileges of his organization. 
When he returns, he is for ever deprived of an active and pas- 
sive vote, and shall moreover be punished with other penalties 
by his superiors in proportion to the eravity of his guilt in 








CANONS 2382-2387 519 


accordance with the constitutions of the respective organization 
(Canon 2385). 

Canon 646 enumerates certain cases of apostasy by which 
the religious is automatically considered dismissed. Canon 644 
authoritatively defines apostasy from religious life (efr. Volume 
I, nn. 561-562). 


FLIGHT FROM ReEuicious LIFE 


2242. A veligious who deserts the religious house without the 
permission of his superiors with the intention of returning is 
called a fugitive in law. He automatically incurs deprivation 
of any office he holds in the religious organization, and, if he is 
a cleric in major orders, incurs suspension reserved to his proper 
major superior. When he returns, he shall be punished in the 
manner indicated by the constitutions of the respective organi- 
zation, and, if the constitutions do not provide for such a ease, 
the major superior shall inflict penalties (at his discretion) in 
proportion to the gravity of his guilt (Canon 2386). 

Canon 644 defines who is meant by ‘‘fugitivus’”’ (cfr. 
Volume I, n. 563). As to the reservation of the suspension, 
Canon 2386 merely states that, when the fugitive is a cleric in 
major orders, the suspension is reserved to his major superior, 
but it does not specify (as is done in Canon 2385) that the 
major superior of clerical exempt organizations is meant. 
Wherefore, Vermeersch-Creusen seem justified in the inference 
that the major superiors of all clerical religious organizations 
are meant in Canon 2386.°° 


RELIGIOUS PROFESSION BY DECEIT 


2243. A religious cleric whose profession has been declared 
null and void for reason of fraud or deceit shall, if he is in 
minor orders, be expelled from the clerical state; if he is in 
major orders, he is automatically suspended until the Apostolic 
See shall see fit to release him from the penalty (Canon 2387). 

Canon 572, n. 4, rules that the profession to which a 
religious obtains admission through deceit is invalid (cfr. Volume 
I, n. 478). The deceit must be in reference to a serious matter, 
- which is of such a nature that the organization would not have 


89 Hpitome, III, n. 590. 


520 A PRACTICAL COMMENTARY 


admitted the religious to profession if it had been acquainted 
with it. 

Members of communities living after the manner of religious 
but without vows, are not religious in the legal meaning of 
the term. Nevertheless, the Committee for the Authentic Inter- 
pretation of the Code declared that the members of all clerical 
communities are subject to the precepts of Canons 2386 and 
yea teil boar 


VIOLATION OF THE OBLIGATION OF CELIBACY 


9944, Clerics in major orders and regulars or nuns who have 
made the solemn vow of chastity, and all persons who presume 
to contract marriage, even by mere civil ceremony, with the 
aforesaid clerics, regulars and nuns, automatically incur excom- 
munication reserved simply to the Apostolic See. Moreover, 
eleries who have been admonished by the Ordinary and do not 
repent within the time specified by the Ordinary according to 
the circumstances of the ease, shall be degraded. Here also ap- 
plies the rule of Canon 188, n. 5, in virtue of which clerics auto- 
matically forfeit every office which they hold (Canon 2388, § 1). 

If religious in perpetual simple vows in religious orders or 
congregations presume to contract marriage, they and the per- 
sons who marry them automatically incur excommunication 
reserved to the Ordinary (Canon 2388, § 2). 

In the Constitution ‘‘Apostolice Sedis,’’ the attempted mar- 
riage of clerics in major orders and of religious men and women 
in solemn vows was punished with excommunication reserved to 
the Ordinary ; their partners in the attempted marriage were also 
liable to the excommunication. The excommunication of the 
Code against religious in perpetual simple vows and their part- | 
ners is new. | 

Commentators on the Constitution ‘‘ Apostolice Sedis’’ and 
on the Code debate whether the parties incur the excommuni- 
cation, if one of them or both give fictitious consent. It seems 
reasonable to say that, if true consent is absent and the lack 
of it can be proved in the external forum, the parties do not 
incur the excommunication, for, without a consent which would 
be naturally sufficient for a valid marriage, there is no real 


90 June 2-3, 1918 (Acta Ap. Sedis, X, 347). 











CANONS 2388-2389 521 


attempt of marriage.*t If an attempted marriage of a cleric 
in major orders or of a solemnly professed religious is invalid, 
not only for reason of the diriment impediment of sacred orders 
or solemn religious profession, but also for reason of some other 
impediment (e.g., consanguinity, affinity, ete.), the parties do 
not escape the excommunication as has been declared by the 
Holy Office. 

The excommunication is incurred only when the above of- 
fense is committed with full knowledge of the law, so that even 
erass and supine ignorance excuses, and also grave fear or any 
other circumstance (e.g., intoxication), which interferes with 
full knowledge and deliberation. 


VIOLATIONS oF CommMuNITY LIFE IN RELIGIOUS ORGANIZATIONS 


2245. Religious who violate the law of community life pre- 
scribed by their constitutions in a notable matter shall be seri- 
ously admonished: if they do not amend, they shall be punished 
even with deprivation of an active and passive vote, and, if they 
are superiors, also with deprivation of office (Canon 23889). 

The law of the Church for religious demands that all re- 
ligious follow the community life, even in what pertains to food, 
clothes and furniture (cfr. Canon 594). The constitutions of 
each organization determine the particulars of the common life. 
The Committee for the Authentic Interpretation of the Code 
declared that Canon 2389 applies also to’ clerical communities 
without vows, who live after the manner of religious.*? 


TITLE XVIII 


OF OFFENSES IN THE CONFERRING OR RECEPTION 
OF, AND DISMISSAL FROM ECCLESIASTICAL DIG- 
NITIES, OFFICES AND BENEFICES 


2246. Persons who in any manner, either in person or 
through others, interfere with the liberty of ecclesiastical elec- 
tions, or who after the completion of the canonical election in 

91 Sole, ‘‘De Delictis et Poenis,’’ n. 448; Vermeersch-Creusen, ‘‘Epi- 
tome,’’ ILI, n. 592; Cerato, ‘‘Censure Vigentes’’ (2nd ed.), n. 64. 


92 January 13, 1892 (Collect. de P. F., II, n. 1777). 
93 January 2-3, 1918 (Acta Ap. Sedis, X, 347). 


§22 A PRACTICAL COMMENTARY 


any manner molest the voters or the person elected, shall be 
punished in proportion to their guilt (Canon 2390, § 1). 

If lay persons or the secular authorities unlawfully and in 
violation of canonical liberty presume to interfere in elections 
conducted by a college of clerics or religious, the electors who 
solicited or freely admitted such interference are automatically 
deprived of the right to vote in that particular election; persons 
who knowingly assented to being elected in that manner are 
automatically rendered disqualified for the office or benefice in 
question (Canon 2390, § 2). 

All elections, with the exception of the election of the Su- 
preme Pontiff (cfr. Canon 2330), are subject to Canon 2390. 
Canon 166 rules that, if lay persons interfere In any manner 
with the freedom of election, the election is 7pso facto invalid. 


OFFENSES COMMITTED IN ELECTIONS 


9247. A college which knowingly elects an unworthy person 
is automatically deprived for that particular election of the 
right to hold a new election (Canon 2391, § 1). 

Individual electors who knowingly failed to observe the es- 
sential form of election may be punished by the Ordinary in 
proportion to their guilt (Canon 2391, § 2). 

The term ‘‘unworthy’”’ is not the same as the non-idonea 
persona, who cannot be elected because an impediment of 
either the common or the particular law prevents his election. 
Canon 179 provides that, if the electors believe that a certain 
person who is under some impediment from which a dispensa- 
tion can be and is usually granted, they can by their votes 
postulate him. An unworthy person is (e.g.) an excommuni- 
cated, suspended, or interdicted person, or one who has been 
punished with deprivation of a passive vote, a person branded 
with infamy of law or fact, a notorious apostate, heretic, schis- 
matic, or public sinner. In accordance with the precept of 
Canon 178, the superior who has the right to confirm the election 
obtains the right to appoint a person to the office, if the college 
of electors is penalized by deprivation of the right to elect. 

If, in countries where clerics or laymen have the right to 
present or nominate a person for a certain office, they know- 
ingly present or nominate an unworthy person, they forfeit in 





CANONS 2390-2393 523 


that one instance the right of nomination or presentation. If 
they present or nominate a persona non-idoenea (cfr. preceding 
paragraph on the meaning of the term), they may present 
another person provided the time for presentation has not yet 
expired (cfr. Canon 1465). 


SIMONY IN THE CONFERRING AND ACCEPTING OF ECCLESIASTICAL 
OFFICES, BENEFICES, DIGNITIES 


2248. Without prejudice to the precept of Canon 729 (which 
decrees invalidity of the appointment to offices, benefices, dig- 
nities), persons who commit simony in any ecclesiastical office, 
benefice, or dignity incur the following penalties: 

(1) they automatically incur excommunication reserved 
simply to the Apostolic See; 

(2) they are automatically deprived for ever of any right 
they may have had to elect, present, or nominate; 

(3) if they are clerics, they shall in addition be suspended 
(Canon 2392). 

Since Canon 2392 states that all persons guilty of simony 
incur the above penalties, it seems certain that simony of both 
the divine and the ecclesiastical law (cfr. Canon 727) is meant. 
Some commentators on the Code, relying on the former laws 
concerning simony, hold that only simony of the divine law is 
meant in Canon 2392. However, where the Code does not dis- 
tinguish, we may not infer a distinction. 


ABUSE OF THE RIGHT OF ELECTION, PRESENTATION, OR 
NOMINATION 


2249. All persons who legitimately enjoy the right to elect, 
present or nominate, and who show disregard for the authority 
of the person to whom pertains the right of confirmation or 
institution by presuming to confer the office, benefice or dignity, 
are automatically deprived for that particular instance of their 
right of election, or presentation or nomination (Canon 2393). 


TLuicir OCCUPATION OF BENEFICES, OFFICES OR DIGNITIES 


2250. If a person by his own authority takes possession of 
an ecclesiastical benefice, office or dignity, or if after his election, 


524 A PRACTICAL COMMENTARY 


presentation or nomination to such office, he takes possession of 
or interferes in the government or administration of the same 
before he has received the necessary letters of confirmation or 
institution and has exhibited them to the persons designated 
by law, he incurs the following penalties: 

(1) he becomes automatically disqualified for the benefice, 
office or dignity, and shall moreover be punished by the Ordi- 
nary in proportion to his guilt; 

(2) he shall be foreed to abandon at once after previous 
warning the possession of the benefice, office or dignity and his 
interference in the government and administration, by suspen- 
sion from or deprivation of any benefice, office or dignity which 
he had previously obtained, and even by deposition, if the gray- 
ity of the offense calls for it; 

(3) chapters, convents and all others concerned who admit 
a person elected, presented or nominated before they have ex- 
hibited the letters of confirmation or appointment by the com- 
petent superior, are automatically suspended from the right to 
elect, nominate or present until the Apostolic See pleases to 
release them from the suspension (Canon 2394). 


ACCEPTANCE oF Non-VACANT BENEFICE, OFFICE, OR DIGNITY 


9251. A person who knowingly accepts appointment to an 
office, benefice or dignity which is not legally vacant, and allows 
himself to be put in possession of the same, becomes automati- 
cally disqualified from obtaining it afterwards, and he shall 
be punished with other penalties in proportion to his guilt 
(Canon 2395). 

Canon 150 rules that the appointment to an office which is 
not legally vacant is automatically null and void; if the office, 
benefice, or dignity, is legally vacant, but is actually in posses- 
sion of another person, the appointment cannot be made until 
a legitimate declaration has been issued concerning the invalid 
possession of the actual occupant (cfr. Canon 151). 


ILLEGAL POSSESSION OF Two INCOMPATIBLE OFFICES OR 
BENEFICES 


9952. A cleric who has obtained peaceful possession of an 
office or benefice which is incompatible with his former office 














CANONS 2394-2399 525 


or benefice, and who nevertheless, in violation of Canons 156 
and 1439, presumes to retain both, is automatically deprived of 
both (Canon 2396). 

Canon 156 rules that two offices are incompatible if both 
cannot be attended to by the same person at the same time, and 
Canon 14389 states that two benefices are incompatible, not only 
when the beneficiary cannot in person comply with all the duties 
attached to both benefices at the same time, but also when each 
of the two benefices suffices for the decent maintenance of a 
cleric. 


REFUSAL OF CARDINALS TO TAKE THE PRESCRIBED OATH 


2253. If a person, on promotion to the dignity of a Car- 
dinal, refuses to take the oath spoken of in Canon 234, he is 
automatically deprived for ever of the cardinalitial dignity 
(Canon 2397). 


NEGLECT OF BisHoP-ELECT TO RECEIVE CONSECRATION IN DUE 
TIME 


2254. If, on his promotion to the episcopal dignity, anyone 
neglects, in violation of the precept of Canon 333, to receive 
within three months the episcopal consecration, he forfeits auto- 
matically the income of his office, which revenue is to be applied 
to the cathedral church; if he neglects to receive the consecra- 
tion for another three months, he is automatically deprived of 
the episcopate (Canon 2398). | 


UNLAWFUL DESERTION OF DuTIES By CLERICS 


9255. Clerics in major orders who presume to abandon the 
office which has been entrusted to them by their proper Ordi- 
nary without his permission, shall be suspended a diwnis for a 
period of time to be determined by the Ordinary according to 
the various cases—i.e., for a longer or shorter period of time 
in proportion to the gravity of guilt (Canon 2399). 


526 A PRACTICAL COMMENTARY 


RESIGNATION OF OFFICE, BENEFICE OR DIGNITY INTO THE HANDS 
or LAYMEN 


9956. A cleric who presumes to resign an ecclesiastical office, 
benefice or dignity into the hands of laymen automatically incurs 
suspension a divinis (Canon 2400). 

Since the appointment to ecclesiastical offices, benefices or 
dignities can be made only by the competent ecclesiastical su- 
perior (cfr. Canon 147), resignation of the same can be made 
only to the ecclesiastical superior (cfr. Canon 187), and the 
resignation does not become effective unless it is accepted by 
the competent superior (cfr. Canon 190). 


ILLEGAL REFUSAL TO ABANDON POSSESSION OF OFFICE, BENEFICE 
or DIGNITY 


9257. If anyone persists in the possession of an office, bene- 
fice or dignity notwithstanding legitimate deprivation or re- 
moval, or if he for the purpose of retaining possession unlaw- 
fully delays to withdraw, he shall after previous warning be 
forced to abandon such office by suspension a divinis or other 
penalties, and even by deposition, if the case calls for it (Canon 
2401). 

Against deprivation from a removable office, recourse to the 
Holy See in devolutivo is permitted (cfr. Canon 192). The 
same recourse is permitted in the removal of irremovable pastors 
(efr. Canon 2146). The removed pastors must leave the parish, 
for the recourse does not suspend the decree of the bishop. 


NEGLECT TO OBTAIN OF ABBATIAL BLESSING 


9258. An abbot or prelate nullius who, in violation of the 
precept of Canon 322, does not obtain the abbatial blessing, 
is automatically suspended from jurisdiction (Canon 2402). 

Canon 319 explains who are abbots or prelates nullwuws. Canon 
322 obliges abbots and prelates nullius to receive the blessing 
within three months from their appointment, if they are obliged 
to receive that blessing either by precept of the Apostolic See 
or by the constitutions of their own order. The suspension is 
not reserved, so that they can be absolved from it by any con- 


Ee 




















CANONS 2400-2405 527 


fessor, provided they cease from their wilful neglect to obtain 
the blessing. 


NEGLECT TO MAKE PRESCRIBED PROFESSION OF FAITH 


2259. A person who, in violation of Canon 1406, neglects 
without a legitimate impediment or excuse to make the profes- 
sion of faith, shall be admonished to do so within a specified 
period of time; if he stubbornly persists in his refusal beyond 
the term fixed, he shall be punished even with deprivation of 
office, benefice, dignity, or position, and forfeits the revenue of 
his benefice, office, dignity, position, while he refuses to make 
the profession of faith (Canon 2403). With reference to the 
persons obliged to make the profession of faith, cfr. Canon 
1406 (above, nn. 1421-1422). 


TITLE XIX 


OF THE ABUSE OF ECCLESIASTICAL AUTHORITY OR 
OFFICE 


9260. The abuse of ecclesiastical authority shall be punished 
at the discretion of the legitimate superior in proportion to the 
eravity of guilt, without prejudice to the precepts of the Canons 
which decree a specific penalty for certain abuses (Canon 2404). 


Wroncs CoMMITTED IN REFERENCE TO DIOCESAN ARCHIVES 


9961. If the vicar-capitular or any other person, whether 
of the Chapter or an outsider, takes away, destroys, hides or 
substantially alters in person or through others any document 
pertaining to the episcopal Curia, he automatically incurs ex- 
communication simply reserved to the Apostolic See, and may 
be punished by the Ordinary even with deprivation of office or 
benefice (Canon 2405). 

While the bishop is in charge of the diocese, he watches over 
the diocesan archives, and, if anyone without proper authority 
interferes with the documents kept there, he can proceed against 
him. During the vacancy of the bishopric, when the diocese is 


528 A PRACTICAL COMMENTARY 


governed by the vicar-capitular or (in countries where there 
are no Chapters of Canons) the administrator, the Code pro- 
tects the episcopal archives under the above penalty. On dio- 
eesan archives during the vacancy of the bishopric, cfr. Canon 
435 (Volume I, n. 317). 


UNFAITHFULNESS IN THE CusTopy oF ECCLESIASTICAL RECORDS 


2262. Any person who is bound py his office to draft, write 
or preserve acts or documents or books pertaining to ecclesi- 
astical Curias or parochial books, and who presumes to falsify, 
mutilate, destroy or hide them, shall be deprived of his office, 
or shall be punished with other grave penalties by the Ordinary 
in proportion to his guilt (Canon 2406, § 1). 

Persons who are in charge of the records or books and who 
maliciously refuse when legitimately requested to transcribe, 
transmit, or exhibit the acts, documents or books, or who in any 
other way abuse their office, may be punished with deprivation 
of or suspension from office, and with fines at the discretion of 
the Ordinary and in proportion to the gravity of guilt in the 
various cases (Canon 2406, § 2). 


ATTEMPTED BRIBERY OF OFFICIALS OF THE CURIA 


2263. A person who attempts to induce to action or omission 
contrary to their office any of the ecclesiastical officials or as- 
sistants of a Curia, or judges, attorneys or procurators by gifts 
or promises, shall be punished with appropriate penalties and 
be forced to repair any damages that may have been caused by 
his bribery (Canon 2407). 

Mere attempted bribery is here made an offense, so that the 
Ordinary is obliged to punish such attempt, even though the 
person did not succeed in inducing the above-mentioned persons 
to violate the duties of their office or position. The judge and 
other officials of the ecclesiastical court, who fail to do their 
duty conscientiously, are to be punished by the local Ordinary 
(cfr. Canon 1625), and the same is true of attorneys and pro- 
curators (efr. Canon 1666). 








CANONS 2406-2410 529 


ILLEGAL EXACTION OF TAXES 


2264. Persons who increase or exact more than the customary 
taxes, legitimately approved in accordance with Canon 1507, 
shall be restrained by a heavy monetary fine, and, if they fail 
again, shall be suspended or removed from office in proportion 
to the gravity of their guilt, without prejudice to their obliga- 
tion of making restitution of the money unjustly acquired 
(Canon 2408). 


UNLAWFUL ISSUANCE oF DIMISSORIALS DURING VACANCY OF 
BISHOPRIC 


2265. If the vicar-capitular issues dimissorial letters for ordi- 
nation in violation of the precept of Canon 958, n. 3, he 
automatically ineurs suspension a divinis (Canon 2409). 

The vicar-capitular (or the administrator of a diocese) is 
not allowed to grant dimissorials for ordination to the subjects 
of the diocese, except under the circumstances mentioned in 
Canon 958. The suspension of Canon 2409 is not reserved. 


ILuLIciIr ORDINATION OF ExEempr RELIGIOUS 


2266. Religious superiors who, in violation of the precepts 
of Canons 965-967, presume to send their subjects to another 
bishop for ordination, are automatically suspended for one 
month from the celebration of Mass (Canon 2410). 

Unless an exempt religious organization has a special privi- 
lege, its religious subjects cannot be sent to any other bishop 
for ordination than the Ordinary of the place where the re- 
ligious candidates are properly domiciled. Exceptions are stated 
in Canon 966. The penalty is of a vindicative nature, and 
cannot be remitted by an authority inferior to the Holy See; 
it ceases when the superior has expiated it by abstaining from 
the saying of Mass for a month (cfr. Canon 2289). The Com- 
mittee for the Authentic Interpretation of the Code declared 
that clerical organizations without vows, living after the manner 
of religious, are also subject to Canon 2410, if the societies enjoy 


530 A PRACTICAL COMMENTARY 


the privilege of issuing dimissorials for ordination to their sub- 
jects.** 


UNLAWFUL ADMISSION TO THE NOVITIATE OR TO RELIGIOUS 
PROFESSION 


2267. Religious superiors who violate the precept of Canon 
542 by receiving into the novitiate a candidate who is not quali- 
fied, or who violate Canon 544 by receiving a candidate without 
the required testimonial letters, or who violate Canon 971 
in admitting candidates to profession, shall be punished in pro- 
portion to the gravity of guilt, even with deprivation of office 
(Canon 2411). The Committee for the Authentic Interpreta- 
tion of the Code declared on June 2-3, 1918, that the first part 
of Canon 2411 (in reference to the reception into the novitiate) 
applies also to clerical communities without vows. 


Famure to Keer Dowry InNtTActT AND Necuect to Notiry Locau 
ORDINARY OF RECEPTION OR PROFESSION IN ReExIcIous Com- 
MUNITIES OF WOMEN 


2268. The superioresses of all religious women, even of exempt 
organizations, shall be punished by the local Ordinary in pro- 
portion to the gravity of their guilt, even with deprivation of 
office : 

(1) if, in violation of the precept of Canon 549, they pre- 
sume to expend in any manner the dowries of the young women 
who have been received into the community, without prejudice 
to the obligation of Canon 551; 

(2) if, in violation of the precept of Canon 552, they omit 
to inform the local Ordinary of the impending admission of a 
subject to the novitiate or to profession (Canon 2412). 


INTERFERENCE OF RELIGIOUS SUPERIORS WITH THE VISITATION 


2269. Superioresses who after the visitation has been an- 
nounced transfer religious to another house without the consent 
of the Visitor, and all religious, whether superioresses or sub- 


24 June 2-3, 1918 (Acta Ap. Sedis, X, 347). 








CANONS 2411-2413 531 


jects, who personally or through others, directly or indirectly, 
induce the religious to remain silent when questioned by the 
Visitor, or to ecnceal the truth in any manner, or not to answer 
with sincerity, or who under any pretext molest the Sisters 
because of the answers they have given to the Visitor, shall be 
declared by the Visitor disqualified for the obtaining of all 
offices which entail government over others, and the superioresses 
shall be deprived of the office which they hold (Canon 2413, §1). 

The precepts of the preceding paragraph apply also to re- 
ligious organizations of men (Canon 2413, § 2). 

By precept of Canon 511 the major superiors of religious 
organizations on whom the duty of making the visitation is 
imposed by their constitutions must visit all the houses subject 
to them within the time specified by the constitutions. In virtue 
of Canon 512, the local Ordinaries are obliged to visit every 
five years all the convents of Sisters in solemn vows and all 
houses of diocesan congregations of men or women. The duties 
of the Visitor (whether the major superior or the Ordinary) 
are pointed out in Canon 513: the religious are strictly com- 
manded to answer the questions of the Visitor truthfully, 
and the superiors are forbidden to dissuade their subjects from 
satisfying their obligation or to interfere in any manner with 
the purpose of the visitation. The local Ordinaries can visit 
the houses only which are within the territory of their juris- 
diction. If a diocesan congregation has houses in various dio- 
ceses, each bishop is in virtue of Canon 512 the appointed Visitor 
for the houses in his own diocese. After the bishop has an- 
nounced his visitation the superioresses may not transfer a Sister 
to another house to prevent her meeting the Visitor. The Com- 
mittee for the Authentic Interpretation of the Code declared 
on June 2-3, 1918, that Canon 2413 applies also to clerical 
organizations without vows in which the members live after 
the manner of religious.®® 


INTERFERENCE BY SUPERIORESSES WITH THE LIBERTY oF Con- 
SCIENCE OF THEIR SUBJECTS 


2270. Any superioress who has violated the precepts of 
Canons 9621, 522, 528, shall be admonished by the local 


95 Acta Ap. Sedis, X, 347. 


532 A PRACTICAL COMMENTARY 


Ordinary. If she fails again in this matter, she shail be pun- 
ished by him with deprivation of office, and the Ordinary shall 
at once inform the Sacred Congregation of the Religious con- 
cerning the matter (Canon 2414). 

The Canons referred to guarantee to religious women liberty 
of conscience and forbid the superioresses to interfere in matters 
pertaining to confession (cfr. Volume I, nn. 402-404). 


saat BPs Ces 














PROFESSIO CATHOLICAE FIDEI 


Ego N. firma fide credo et profiteor omnia et singula, quae 
continentur in symbolo Fidei, quo sancta Romana Ecclesia uti- 
tur, videlicet: Credo in unum Deum, Patrem omnipotentem, 
factorem caeli et terrae, visibilium omnium et invisibilium. Et 
in unum Dominum Iesum Christum, Filium Dei Unigenitum. Et 
ex Patre natum, ante omnia saecula. Deum de Deo, lumen de 
lumine, Deum verum de Deo vero. Genitum non factum, con- 
substantialem Patri: per quem omnia facta sunt. Qui propter 
nos homines, et propter nostram salutem descendit de ecaelis. Et 
incarnatus est de Spiritu Sancto ex Maria Virgine, et Homo 
factus est. Crucifixus etiam pro nobis, sub Pontio Pilato: passus, 
et sepultus est. Et resurrexit tertia die, secundum Scripturas. 
Et ascendit in caelum: sedet ad dexteram Patris. Et iterum 
venturus est cum gloria iudicare vivos, et mortuos: cuius regni 
non erit finis. Et in Spiritum Sanctum, Dominum et vivifican- 
tem: qui ex Patre Filioque procedit. Qui cum Patre et Filio 
simul adoratur, et conglorificatur: qui lecutus est per prophetas. 
Et Unam, Sanctam, Catholicam et Apostolicam Ecclesiam. Con- 
fiteor unum Baptisma in remissionem peccatorum. Et exspecto 
resurrectionem mortuorum. Et vitam venturi saeculi. Amen. 

Apostolicas et ecclesiasticas traditiones, reliquasque eiusdem 
Eeclesiae observationes et constitutiones firmissime admitto ‘et 
amplector. Item sacram Scripturam iuxta eum sensum, quem 
tenuit et tenet sancta Mater Ecclesia, cuius est indicare de vero 
sensu et interpretatione sacrarum Scripturarum, admitto; nec 
eam unquam, nisi iuxta unanimem consensum Patrum, accipiam 
et interpretabor. 

Profiteor quoque septem esse vere et proprie Sacramenta 
novae legis a Jesu Christo Domino nostro instituta, atque ad 
salutem humani generis, licet non omnia singulis, necessaria, 
scilicet, Baptismum, Confirmationem, Eucharistiam, Poeniten- 
tiam, Extremam Unctionem, Ordinem et Matrimonium; illaque 


533 


534 A PRACTICAL COMMENTARY 


sratiam conferre, et ex his Baptismum, Confirmationem et Ordi- 
nem sine sacrilegio reiterari non posse. - Receptos quoque et 
approbatos Ecclesiae Catholicae ritus in supradictorum omnium 
Sacramentorum sollemni administratione recipio et admitto. - 
Omnia et singula quae de peccato originali et de iustificatione 
in sacrosancta Tridentina Synodo definita et declarata fuerunt, 
amplector et recipio. - Profiteor pariter in Missa offerri Deo 
verum, proprium et propitiatorium Sacrificium pro vivis et de- 
functis; atque in sanctissimo Eucharistiae Sacramento esse vere, 
realiter et substantialiter Corpus et Sanguinem una cum anima 
et divinitate Domini nostri Iesu Christi, fierique conversionem 
totius substantiae panis in Corpus, et totius substantiae vini in 
Sanguinem, guam conversionem Catholica Ecclesia Transsub- 
stantiationem appellat. Fateor etiam sub altera tantum specie 
totum atque integrum Christum, verumque Sacramentum sumi. - 
Constanter teneo Purgatorium esse, animasque ibi detentas fidel- 
ium suffragiis iuvari. Similiter et Sanctos una cum Christo 
regnantes venerandos atque invocandos esse, eosque orationes 
Deo pro nobis offerre, atque eorum Reliquias esse venerandas. 
Firmiter assero imagines Christi ac Deiparae semper Virginis, 
necnon aliorum Sanctorum habendas et retinendas esse, atque eis 
debitum honorem ac venerationem impertiendam. - Indulgenti- 
arum etiam potestatem a Christo in Ecclesia relictam fuisse, 
illarumque usum Christiano populo maxime salutarem esse 
affirmo. - Sanctam, Catholicam et Apostolicam Romanam Eccle- 
siam, omnium Ecclesiarum matrem et magistram agnosco, Rom- 
anoque Pontifici beati Petri Apostolorum Principis successori ac 
Iesu Christi Vicario veram obedientiam spondeo ac iuro. 

Cetera item omnia a sacris Canonibus et Oecumenicis Con- 
ciliis, ac praecipue a sacrosancta Tridentina Synodo et ab Oecu- 
menico Concilio Vaticano tradita, definita ac declarata, praeser- 
tim de Romani Pontificis prin.atu et infallibili magisterio, 
indubitanter recipio atque profiteor, simulque contraria omnia, 
atque haereses quascunque ab Ecclesia damnatas et reiectas et 
anathematizatas, ego pariter damno, reiicio et anathematizo. 
Hane veram Catholicam Fidem, extra quam nemo salvus esse 
potest, quam in praesenti sponte profiteor et veraciter teneo, 
eandem integram et inviolatam usque ad extremum vitae spir- 
itum, constantissime, Deo adiuvante, retinere et confiteri, atque 
a meis subditis seu illis, quorum cura ad me in munere meo 





IURISIURANDI FORMULA 535 


spectabit, teneri et doceri et praedicari, quantum in me erit 
curaturum, ego idem N. spondeo, voveo ac iuro. Sie me Deus 
adiuvet, et haeec sancta Dei Evangelia. 


IURISIURANDI F'ORMULA 
CONTRA MODERNISMI DOCTRINAS 


JuxTA Moru Proprio ‘‘SAcrorum ANTISTITUM’’ Primt SEPTEM- 
BRIS, 1910. (Acta Ap. Sedis, II, 669.) 


Kgo .. firmiter amplector ac recipio omnia et singula, quae 
ab inerranti Ecclesiae magisterio definita, adserta ac declarata 
sunt, praesertim ea doctrinae capita, quae huius temporis errori- 
bus directo adversantur. Ac primum quidem Deum, rerum 
omnium principium et finem, naturali rationis lumine per ea 
quae facta sunt, hoe est per visibilia creationis opera, tamquam 
causam per effectus, certo cognosci, adeoque demonstrari etiam 
posse, profiteor. Secundo: Externa revelationis argumenta, hoc 
est facta divina, in primisque miracula et prophetias admitto 
et agnosco tamquam signa certissima divinitus ortae Christianae 
Religionis, eademque teneo aetatum omnium atque hominum, 
etiam huius temporis, intelligentiae esse maxime accommodata. 
Tertio: Firma pariter fide credo, Ecclesiam, verbi revelati custo- 
dem et magistram, per ipsum verum atque historicum Christum, 
quum apud nos degeret, proxime ac directo institutam, eandem- 
que super Petrum, apostolicae hierarchiae principem eiusque in 
aevum successores aedificatam. Quarto: Fidei doctrinam ab 
Apostolis per orthodoxos Patres eodem sensu eademque semper 
sententia ad nos usque transmissam, sincere recipio ; ideoque pror- 
sus relicio haereticum commentum evolutionis dogmatum, ab uno 
in alium sensum transeuntium, diversum ab eo, quem prius habuit 
Ecclesia ; pariterque damno errorem omnem, quo, divino deposito, 
Christi Sponsae tradito ab eaque fideliter custodiendo, sufficitur 
philosophicum inventum, vel creatio humanae conscientiae, ho- 
minum conatu sensim efformatae et in posterum indefinito prog- 
ressu perficiendae. Quinto: Certissime teneo ac sincere profiteor, 
Fidem non esse coecum sensum religionis e latebris suwbconsci- 
entiae erumpentem, sub pressione cordis et inflexionis voluntatis 


536 A PRACTICAL COMMENTARY 


moraliter informatae, sed verum assensum intellectus veritati 
extrinsecus acceptae ex auditu, quo nempe, quae a Deo personali, 
ereatore ac domino nostro dicta, testata et revelata sunt, vera 
esse eredimus, propter Dei auctoritatem summe veracis. 

Me etiam, qua par est, reverentia, subiicio totoque animo 
adhaereo damnationibus, declarationibus, praescriptis omnibus, 
quae in Encyelicis litteris ‘Pascendi’ et in Decreto ‘Lamen- 
tabili’ continentur praesertim, cirea eam quam historiam dog- 
matum vocant. — Idem reprobo errorem affirmantium, propo- 
sitam ab Ecclesia fidem posse historiae repugnare, et catholica 
dogmata, quo sensu nune intelliguntur, cum verioribus Chris- 
tianae Religionis originibus componi non posse. — Damno quoque 
ac reiicio eorum sententiam, qui dicunt, christianum hominem 
eruditiorem induere personam duplicem, aliam credentis, aliam 
historici, quasi liceret historico ea retinere quae credentis fidei 
contradicant, aut praemissas adstruere, ex quibus consequatur 
dogmata esse aut falsa aut dubia, modo haec directo non dene- 
gentur. — Reprobo pariter eam Scripturae Sanctae diiudicandae 
atque interpretandae rationem, quae, Hcclesiae traditione, analogia 
Fidei, et Apostolicae Sedis normis posthabitis, ratwonalistarum 
commentis inhaeret, et criticen textus velut unicam supremamque 
regulam, haud minus licenter quam temere amplectitur. — Sen- 
tentiam praeterea illorum reiicio qui tenent, doctori disciplinae 
historicae theologicae tradendae, aut iis de rebus scribenti sepon- 
endam prius esse opinionem ante conceptam sive de supernaturali 
origine catholicae traditionis, sive de promissa divinitus ope ad 
perennem conservationem uniuscuiusque revelati veri; deinde 
seripta Patrum singulorum interpretanda solis scientiae prin- 
cipiis, sacra qualibet auctoritate seclusa, eaque iudicii libertate, 
qua profana quaevis monumenta solent investigari. — In uni- 
versum denique me alienissimum ab errore profiteor, quo mod- 
ernistae tenent in sacra traditione nihil inesse divini; aut, quod 
longe deterius, pantheistico sensu illud admittunt; ita ut nihil 
iam restet nisi nudum factum et simplex, communibus historiae 
factis aequandum; hominum nempe sua industria, solertia, 
ingenio scholam a Christo eiusque Apostolis inchoatam per sub- 
sequentes aetates continuantium. Proinde fidem Patrum firmis- 
sime retineo et ad extremum vitae spiritum retinebo, de charis- 
mate veritatis certo, quod est, fuit eritque semper in episcopatus 
ab Apostolis successione; non ut id teneatur quod melius et 


IURISIURANDI FORMULA 537 


aptius videri possit secundum suam cuiusque aetatis culturam, 
sed ut nunquam aliter credatur, nunquam aliter intelligatur 
absoluta et immutabilis veritas ab initio per Apostolos prae- 
dicata. 

Haee omnia spondeo me fideliter, integre sincereque serva- 
turum et inviolabiliter custoditurum, nusquam ab lis sive in 
docendo sive quomodolibet verbis scriptisque deflectendo. Sic 
spondeo, sic juro, sic me Deus adjuvet et haec sancta Dei 
Evangelia. 











APPENDIX I 
DOCUM. I 


CONSTITUTION OF Pore Pius X “VACANTE SEDE APOSTOLICA,” 
DECEMBER 25, 1904 


This Constitution lays down the rules, which shall govern future 
Papal elections, and abrogates all previous Constitutions and Decrees 
on this subject except the Constitutions “Commissum Nobis” (Document 
II) and “Praedecessores Nostri,” with its Instructions (Document III). 

Title I defines the powers of the Sacred College of Cardinals during 
the vacancy of the Apostolic See, and details the procedure to be fol- 
lowed by the Sacred Congregations and various officials of the Holy See 
in dealing with current business. 

Title IT gives explicit directions regarding the Conclave—the electors 
and their servants, their entrance into the Conclave, the precautions for 
preserving secrecy, the manner of election, the form of the ballot, the 
proclamation of the election, and the consecration and coronation of the 
new Pope. 


DOCUM. II 


ConstTITUTION or Pore Pius X “Commissum Noss,” January 20, 1904 


Under pain of excommunication latae sententiae, reserved specially 
to the future Pope, this Constitution forbids any member of the Con- 
clave to manifest in any manner whatsoever (even as a mere desire) or 
under any pretext the Veto of a Civil Power. 


DOCUM. III 


CoNSTITUTION OF Porr LEro XIII “Prarpecessores Nostr1,” witH Irs 
Instructions, May 24, 1882 


As stated above, this is one of the three Constitutions which now 
govern Papal elections. It contains explicit directions as to how the 


538 





APPENDIX I 539 


Cardinals should conduct themselves in the various emergencies which 
may arise between the death of a Pope and the election of his successor. 


DOCUM. IV 
ConstituTio Brnepictt PP. XIV “Cum 1Liup,” 14 Drecempris 1742 


Cum illud semper plurimum formidaverit Ecclesia Catholica, ne 
indignis quibusque, et extra sacerdotale meritum constitutis, cura ani- 
marum, et Dominici gregis custodia crederetur; quia totius familiae 
status, et ordo nutat, si quod requiritur in corpore, non invenitur in 
eapite: Hine canonicis sanctionibus, ac praesertim Sanctae Tridentinae 
Synodi Decretis provide consultum est, regimen ecclesiarum parochia- 
lium ils esse committendum, quorum omnis aetas a puerilibus exordiis 
ad perfectiores annos per disciplinae ecclesiasticae stipendia ita cucur- 
risset, ut de illorum supra alios provectione, ac potiori doctrinae, 
morum, ac diuturni laboris suffragio, nefas esset dubitare. Quia vero 
perniciosa apud plurimos opinio sensim invaluit, Tridentini Decretis 
non praescriptam esse dignioris electionem. sed caveri tantummodo, ne 
indignis ecclesiae parochiales, aliaque beneficia, quibus cura imminet 
animarum, conferrentur; san. mem. Innocentius XI Praedecessor 
Noster erroneam doctrinam a vera, et sincera Patrum mente longius 
deflectentem damnavit, et edocuit, quam prudens, ac diligens esse debeat 
Pastoralis officii dispensatio. 

§ 1. Ad tramites idcireco eiusdem Sanctae Synodi, usu receptum est, 
occurrente parochialis ecclesiae vacatione, quae libere ab Ordinario 
conferenda sit, concursum institui, ut, habita in eo de cuiuslibet aetate, 
moribus, doctrina, et sufficientia, solerti inquisitione, Episcopus eligat 
quem caeteris magis idoneum iudicaverit. 

§ 2. At quia contingere quandoque potest, quod favore, vel gratia, 
vel minus aequo iudicio, minus digni dignioribus praeponantur, san. 
mem. Pius V Noster Praedecessor, ne quid in huiusmodi electione esset 
inordinatum, atque praeposterum, edita saluberrima Constitutione, licere 
voluit iniuste in concursu reiectis, interposita ad Metropolitanum, vel 
Episcopum viciniorem, vel Sedem quandoque Apostolicam appella- 
tione, praeelectum ad novum examen provocare, et ecclesiam alteri non 
rite collatam, novo facto meritorum periculo, si ita ius esset. vindicare. 
Kt ne frivolae appellationis diffugio locus esset, provide ibidem cautum 
est, dictae appellationi in devolutivo tantum deferri oportere, non sus- 
pensa, aut quoquo modo retardata praeelecto ab Ordinario parochialis 
ecclesiae possessione. 


§ 3. Consultissimae huiusmodi leges eum in finem institutae, ne in 


540 A PRACTICAL COMMENTARY 


tanti momenti re imperiti magistris, novi antiquis, rudes praeferantur 
emeritis, violatae sunt hominum fraude et malitia, ipsa medela vulnus 
exasperantium. Saepissime enim reiecti ab Ordinario, dictae Consti- 
tutionis obtentu, in vocem appellationis facile prorumpere, et, minus 
legitima concurrente causa, electos ab Episcopo ad novum examen 
provocare consueverant; illosque praeterea, relicta gregis, et ecclesiae 
custodia, longum iter arripere, et diuturni laboris, temporis, et pecu- 
niae impensa exhaustos, htem in secunda, tertia, et ulteriori quandoque 
instantia sustinere cogebant. 

§ 4. Quin etiam experientia compertum est, magno iustitiae detri- 
mento litem ipsam absolvi. Quandoquidem ii, qui examini se subiecerant, 
atque in primaevo concursu, utpote legitimarum institutionum nescil, 
reiecti fuerant, longa postmodum decurrente lite, sedulam litteris ex 
industria navantes operam, praeferri aliis merebantur, et acerbe suc- 
censebant Episcopo, iudici quidem adeptae, non autem adipiscendae 
peritiae, per iniuriam se fuisse reiectos. 

§5. Hine apud bene moratos homines, et iustitiae vindices, fre- 
quens querelarum occasio: quibus sedandis cum Congregatio Concilii 
Tridentini interpres omne studium, diligentiamque conferret; Nobis, 
qui Secretarii munere fungebamur, mandatum est, ut sermone, typis 
postea vulgato, rem sedulo expendere, ingruentis mali originem, et apta 
eidem avertendo remedia investigare pro viribus niteremur. Sensus hac 
de re Nostros explicantes, vitio potissimum laborare comperuimus 
praxim examinis oretenus habiti, nee scriptis consignati: electi siquidem 
ad curam animarum ab Ordinario collatore, et ad iteratum examen 
coram alio iudice provocati, ius legitimae collationis tueri non poterant 
certo, ac permanenti testimonio iam probatae idoneitatis; sed a novi 
examinis alea, subeunda coram iudice appellationis, gestarum rerum 
prorsus ignaro, tota res pendere videbatur. Quocirea gravi iustitiae 
detrimento recepta in foro erat opinio, provocari posse ad alium 
iudicem, nullo exhibito indebitae reiectionis documento. Quod quidem 
cum a sacrorum canonum censura longius aberraret, facile huic cor- 
ruptelae oceurri posse censuimus, si certa primum, et apte disposita 
habendi examinis forma praescriberetur; si quaestiones examinatis 
propositae, et consentaneae illorum responsiones, totaque rei gestae 
series in scriptis redigeretur; et si acta demum totius concursus ad 
iudicem appellationis integra asportarentur. 

§ 6. Inita a Nobis consilii ratio non solum arrisit Congregationi, 
illam die 16 Novembris 1720 ratam habenti; sed etiam Pontificii iudicii 
accessione roborata fuit a Clemente XI ecclesiasticae disciplinae vin- 
dice, et assertore eximio. Utque locorum Ordinarii ea omnia filiali, quo 
par erat, obsequio, et diligentia exequerentur, iis datae sunt die 10 
Tanuarii 1721 opportunae litterae nostro calamo exaratae, elusdemque 





APPENDIX I 541 


Pontificis sensu, et oraculo comprobatae, quarum tenorem, etsi alias 
praelo commissum, et insertum in Bullario dicti Clementis Praedeces- 
soris Nostri, congrue hic duximus referendum. 

§ 7. Reverendissime Domine uti Frater. Quo parochiales ecclesiae 
dignioribus personis gubernandae traderentur, statuit, ut notum est, 
Sacrosancta Tridentina Synodus sess. 24, cap. 18, ut, vacante ecclesia 
parochiali, indiceretur, et fieret concursus; ac, postquam concurrentes 
ab Episcopo, vel eius Vicario Generali, atque ab Examinatoribus 
Synodalibus saltem, tribus, examinati, et approbati essent, E'piscopus 
eum eligeret, quem aetate, moribus, doctrina, prudentia, aliisque rebus 
ad vacantem ecclesiam gubernandam necessariis, et opportunis, dignio- 
rem caeteris, magisque idoneum iudicaret. Adiecitque ad hane Coneilu 
sanctionem validius confirmandam, re, et nomine sanctissimus Pontifex 
Pius V, quod, si unquam Episcopus minus habilem, postpositis magis 
idoneis, elegisset, possent w, qui reiecti essent, a mala eiusmodi elec- 
tione ad Metropolitanum, vel, si ipse eligens Metropolitanus, aut 
exemptus foret, ad viciniorem Ordinarium, ut Sedis Apostolicae Dele- 
gatum, vel alias ad ipsam Sedem Apostolicam appellare, ac pracelec- 
tum ad novum examen coram ipso appellationis iudice, et etus Hxami- 
natoribus, provocare; ea tamen cautione, ut appellatio non im suspen- 
sivo, sed in devolutivo esse deberet; quemadmodum in eius Constitu- 
tiene, quae trigesima tertia est, latius cavetur; concludendo, quod, 
constito de prioris eligentis irrationabili wudicio, eoque revocato, paro- 
chialis ecclesia magis idoneo conferatur. 

Cum autem neque Concilii Decreto, neque Pontificis Bulla examinis 
in concursu peragendi forma, seu methodus ulla certa, ac peculiaris 
servanda proponatur; difficile dictu est, quanta examinum, aliorum 
alibi diversitas, extiterit, atque hinc occasio querelarum. Nam alicubi, 
cum non eaedem omnibus quaestiones, non iidem casus propositi fuis- 
sent; erant identidem, qui, vel in tudicio, vel extra conquererentur, 
sibi quidem postpositis difficiliores, praeelecto autem faciliores ad sol- 
vendum quaestiones obtigisse. Alibi vero eaedem quidem omnibus 
quaestiones propositae fuerunt, sed neque hae, neque datae a concur- 
rentibus responsiones, scripto, seu litteris consignabantur. Cumque 
postmodum, nec raro contingeret, ut e postpositis quispiam, iure Bullae 
supradictae, novum ad examen coram iudice appellationis, eiusque 
examinatoribus, electum provocaret: S. Congregatio usque ab anno 
1603 considerans gravamen non alia ratione, quam novo examine, 
probart posse; provocationem ad novum examen censuit admittendam, 
gravamine nec dum probato, et requisitis tantummodo probationibus 
in subsequenti iudicio: in quo, probato, per novum examen appel- 
lantis, gravamine quoad doctrinam, probanda superest eiusdem prae 
iam electo in reliquis ad regendam ecclesiam requisitis praestantia, ut 


542 A PRACTICAL COMMENTARY 


de maiori alterutrius ad parochialis ecclesiae gubernium, idonertate 
sententia ferri possit: cum non continuo, si quis est doctior, is etiam 
aptior, seu magis idoneus ad id regimen habeatur, vel etiam habendus 
sit. Quam Sacrae Congregationis sententiam seriptores, et tribunalia 
laudarunt. Aliis demum in dioecesibus laudabilis invaluit consuetudo, 
ut eaedem omnibus quaestiones, idemque casus prononantur,; ac (ne 
qua detur ansa Cancellario quidquam suo marte addendi, minuendi, 
mutandi) ut ipsimet concurrentes, qui interrogati fuerint, quaeque 
responderint, sua manu perscribant. 

Atque Ordinarii, qui morem hune longe optimum in examinando 
tenuere, Sacrae deinde Congregationi etiam, atque etiam, considerandum 
reliquerunt, his, qui sic examinati essent, atque postpositi, in posterum, 
ut solent, appellantibus, indulgenda, nec ne, statim electi novum, ad 
examen provocatio, nulla gravaminis praerequisita probatione, vide- 
retur; cum isti ex actis primi examinis gravamen doctrinae facile alio- 
quin probare possent; quod alu aliter nimirum examinati, probare, 
nisi secundo, seu novo examine, non poterant. Nec defuere ali pro- 
bitatis, ac peritiae in administrandis diu ecclestis laude praestantes, 
qui monerent, fraenum aliquod huiusmodt appellantium licentiae tan- 
dem iniiciendum, eorumque iam nimis crebras novum ad examen pro- 
vecationes esse reprimendas; quippe quae vix unquam sine magno 
ecclesiarum damno contingunt. Nam cum novum examen coram tudice 
appellationis longe procul a parochia peragendum sit; electus ab Epis- 
copo, qui provocatur, parochiam, quam possidet, cogitur interea tem- 
poris deserere, eamque Oeconomo, vel Vicario cuipiam, veluti sponsam 
ignotis custodibus, relinquere, sponso non parumper, sed diu sane 
abfuturo; dum nempe, implicita, ut fit, lite, terna etiam vel quaterna, 
alia ex aliis, examina, super praestantia primum doctrinae, tum deimde 
aliorum, quae ad integrandam idoneitatem opportuna sunt, conten- 
tiose multiplicentur, et commode, ne dicam otiose, transigantur, ante- 
quam deliberari possit utri concurrentium parochia sit adiudicanda. 

Ad tollendam eiusmodi non minus querelarum, quam incommodorum 
occasionem, Sacra Congregatio Concili Tridentini interpres, postquam 
rem omnem a capite repetitam in gemina sessione 1 Octobris, et 16 
Novembris 1720 summo studio recognovit, tandem, Sanctissimo etiam 
annuente, statwit (quod per praesentes litteras encyclicas exequitur) 
omnes, et singulos Episcopos, aliosque Praelatos, penes quos sit tus, et 
auctoritas faciendi concursum, hortari, ut examen eiusmodi mstituere 
non graventur, quale iam et multae dioeceses, et Urbs ipsa observat, 
atque Apostolica etiam Dataria postulat; sive, cum, Sede vacante, vacat 
ecclesia aliqua parochialis, cuius collatio ad Sedem Apostolicam per- 
tineat; sive cum vacat parochialis aliqua, ut dicitur, tuxta Decretum ; 
sive demum, cum, vacante in collegiatis, aut cathedralibus ecclesiis dig- 





APPENDIX I 543 


nitate aliqua maiori, annexam habente curam animarum, faciendus est 
concursus, atque ad Apostolicam Datariam transmittendus, ut notwm 
est, atque in litteris, quae de ordine Sanctissimi, tune a Dataria pro- 
deunt, clare praescribitur. 

Vacante itaque ecclesia parochiali, quae conferenda sit per concur- 
sum, atque hoc solitis formulis indicto, haec quae sequuntur, ex Sacrae 
Congregationis sententia, consilio, suasione, servanda proponuntar. 

1. Primum nempe, ut assignentur eaedem omnibus concurrentibus 
quaestiones, tidem casus, idemque textus Hvangelu, super quo sermonis 
aliquid perscribant, ad probandam dicendi pro concione facultatem. 

2. Alterum, ut casus, et quaestiones resolvendae dictentur omnibus 
ecodem tempore, atque omnibus pariter eodem tempore textus Evangel 
tradatur. 

3. Tertium, ut certum, idemque omnibus spatium temporis consti- 
tuatur, intra quod casus resolvant, quaestionibus respondeant, conciun- 
culam componant. 

4, Quartum, ut eodem concurrentes omnes in conclavi claudantur, 
unde, quandiu scribent (dabitur enim omnibus scribendi copia) nemo 
corum egredi, neque alius quispiam eo ingredi possit, msi postquam 
scripta confecerint, et exhibuerint. 

5. Quintum, ut omnes sua quisque manu tum responsa, tum ser- 
monem scribant, subscribantque. 

6. Sextum, ut responsa quidem latine, sermo autem ea, qua ad 
populum haberi solet, lingua scribatur. 

7. Postremum, ut unumquodque responsum, et unusquisque sermo, 
cum ab unoquoque concurrentium exhibebitur, non solum ab eo, qui 
scripsit, atque a Cancellario concursus, verum etiam ab Examinatoribus, 
et ab Ordinario, vel ecius Vicario, qui concursui interfuerint, subsert- 
batur. 

Peracto secundum hance formulam concursu, collataque ei, qui magis 
idoneus, ac dignior indicatus fuerit, ecclesia parochiali, non admittatur 
appellatio, aut a mala relatione Examinatorum, aut ab irrationabili 
iudicio E'piscopi, nisi intra decem dies a die collationis interponatur. 

St quis autem hoc intra spatium appellaverit, actaque concursus 
petat ad iudicem appellationis transferenda; mittantur vel acta ipsa 
originalia concursus clausa, et obsignata, vel certe unum aliquod 
authenticum eorum exemplum, a Cancellario concursus, atque altero 
notario collatum, et auscultatum coram Vicario, vel alio in ecclesiastica 
digmtate constituto, quem eligat Ordinarius, ad quem etiam notari 
Cancellario adiungendi electio pertinebit; necnon ab Examinatoribus 
Synodalibus, qui concursui interfuerunt, subscriptum. 

Ex quibus actis, vel authentico eorum exemplo, nisi gravamen quoad 
doctrinam probet is, qui sic, ut praemittitur, examinatus, aut a mala 


544 A PRACTICAL COMMENTARY 


relatione Examinatorum, aut ab irrationabili iudicio Episcopi appella- 
verit, novum ad examen provocandi facultatem a Sacra Congregatione 
frustra postulabit. 

Quemadmodum et in iudicio appellationis persequi ius suum frustra 
tentabit is, qui forte se gravatum doleat quoad reliqua, nisi, inter- 
posita mature, ut dictum est, appellatione ab irrationabili iudicio E'pis- 
copi, gravamen quoad illa ostenderit, vel ex actis primi concursus, vel 
saltem ex attestatiombus, et documentis extraiudicialibus etiam, sed non 
levibus. 

Atque ita quidem sensit Sacra Congregatio, et Sanctissimus assensit. 

At si quis tamen Ordinariorum aliter, ac supra descriptum, est, con- 
currentium examina instituere perrexerit, perget et Sacra tpsa Con- 
gregatio more pristino appellantibus, qui se gravatos dixerint, provo- 
cationem ad novum examen, nulla gravaminis praevia probatione, indul- 
gere. Interim tamen, ne harum litterarum memoria dilabatur, vult 
eadem Sacra Congregatio, eas in uniuscuiusque Ordinarti Cancellaria 
perpetuo conservari. Cuius imterea consilium, tum voluntatem, dum 
ego omnibus significo, Amplitudini Tuae fausta omnia e coelo precor. 
Romae hac die 10 Ianuarw 1721. 


Amplitudinis Tuae. 
Uti frater 
P. M. Card. CORRADINUS, Praefectus. 
P. LAMBERTINUS, Secretarius. 


§ 8. Quantum recte dispensandis ecclesiasticis muneribus, adminis- 
trandae iustitiae, componendis dissidiis, continendisque in officio clericis 
proficeret saluberrima praemissarum legum institutio, satis superque 
experientia comperuimus, cum Anconitanam primum ecelesiam, ac 
dcinde Bononiensem sponsam nostram paterna charitate cominus 
amplecteremur. Freti siquidem dictarum legum praesidio, digniores paro- 
chiis, et curae animarum praefecimus: tantaque, benedicente Domino, id 
accidit animorum consensione, ut nemo questus sit, traditum minus 
digno celsioris loci praemium, vel minus iuste alteri credita vacantis 
ecclesiae gubernacula. 

§ 9. At quia certis admonemur indiciis, non ita id aliis Episcopis 
contigisse; imo non deesse, qui privatis abrepti studiis, saepe declinare, 
ac redarguere iudicium Episcopale praesumant: Nos propterea solliciti 
de implendis, prout decet, muneris Nostri partibus, nonnvlla praefatis 
litteris addenda, nonnulla vero tacite, breviterque ibidem tradita, clarius 
explicanda censuimus, ut recte omnia, atque ex ordine peragantur. 

§ 10. Moerentes igitur audivimus, quod in plerisque dioecesibus, etsi 
recepta sit laudabilis, firmiterque custodienda consuetudo in scriptis 





APPENDIX I 545 


redigendi examen concurrentium, nihilominus Examinatorum suffragia 
in sola litterarum peritia versantur, nec illorum exquiritur sententia 
de clericorum aetate, institutione, gravitate, et honestate morum, pru- 
dentia, muniis antea exercitis, et an tales demum sint, qui oves suas 
verbo, et exemplo iuvare possint. Quam devia sit huiusmodi praxis a 
Tridentini semita, is plane intelliget, qui expendet verba relata cap. 18, 
sess. 24, de Reformat.: Peracto deinde examine, renuntientur quot- 
cumque ab his idonei iudicati fuerint moribus, doctrina, prudentia, et 
aliis rebus ad vacantem ecclesiam gubernandam opportunis. Idque 
probe noscens Congregatio eiusdem Concilii interpres, pluries edixit, 
E-xaminatores suo deesse muneri, si doctrinae tantum iudices essent, 
nec inquirerent, qui prae aliis, probitate morum, laboribus, praestito 
antea ecclesiae obsequio, caeterisque dotibus ad officium parochi cumu- 
late obeundum necesariis, essent idonei, et commendabiles. | 

§ 11. Absoluto examine, ut cuique satis compertum est, sit tantum- 
mcdo potestas Examinatoribus renuntiandi quotquot regendae ecclesiae 
idoneos iudicaverint, reservata uni Episcopo electione dignioris, que- 
madmodum sancitum est a Tridentino illis verbis: Ex hisque Episcopus 
eligat, quem caeteris magis idoneum iudicaverit: At si quem clerico- 
rum forte contigerit appellare a mala relatione Examinatorum, 
quorum cura unice versata fuerit in exquirenda doctrina, non facta 
uno eodemque tempore solerti etiam investigatione aliarum quali- 
tatum, quae Pastoris congruant officio; ordo iudicii secumferet: ut 
etiam iudex, ad quem provocatum fuit, in sola doctrinae indagine 
immoretur: nec sine gravi animarum detrimento, et disciplinae iniuria, 
praeficiatur ecclesiae, qui litteris magis posset, licet caetera minus aptus, 
et quandoque indignus; contra vero arceatur ille, qui licet impar doc- 
trinae merito, attamen moribus, gravitate, prudentia, probato nomine, 
diuturno ecclesiae famulatu, ac multiplici virtutum laude praecellit. 

§ 12. Factum praeterea satis extirpandis abusibus non videtur, si 
tam Episcopus, quam Examinatores, coniunctis studiis, industriae 
nervos omnes intenderint in conferenda concordi iudicio Eeclesia per- 
sonae, quae licet scientia, et litteris alteri concedat, maiori tamen caete- 
rarum qualitatum eminet ornamento; siquidem postpositus, suae nimium 
fidens doctrinae, ab irrationabili iudicio Episcopi non raro appellat; 
causaque ad iudicem appellationis delata, idem totus est in perquirenda 
maiori doctrina, ac reparando gravamine litterato homini irrogato, 
nusquam librato aliarum virtutum pondere, quae in appellante desi- 
derantur: lugentque ut plurimum vigiles Ecclesiarum Antistites exitum 
huiusmodi appellationis, intimeque dolent, parochias doctis, non aptis 
Pastoribus, ut dictum est, rezendas committi. 

§ 13. At si index etiam appellationis (quod raro evenit) tantum 
tribuens scientiae, quantum satis, maiori, et accuratiorl] examine inqui- 


546 A PRACTICAL COMMENTARY 


rat, qui mores hominum sint, quae gravitas, prudentia, qui suscepti 
antea labores, quae virtutum specimina, quae demum totius anteactae 
vitae ratio, pascendo gregi consentanea: tot iudici exhibentur attesta- 
tiones ab appellante ex industria collectae, ut, revocato Episcopali 
iudicio, tamquam irrationabili, non vereatur index succurrere eidem 
appellanti, quem tam copiosa, tamque conspicua probitatis adiuvant 
documenta. 

§ 14. Demum cum praecipue Episcopis, tanquam in specula con- 
stitutis, pateant subditorum excessus, contingere solet, ut in concursu, 
tam inspecta scientia, quam moribus, ille idoneus ab Examinatoribus 
renuntietur, cui foeda aliqua vitii labes, ac criminis macula inusta sit, 
omnibus, praeterquam Episcopo, occulta. Si Episcopus, iusta suadente 
causa, crimine non revelato, eumdem criminosum tacitus praeterierit, 
aliumque immunem a sorde praeelegerit, illico postpositus, simulato 
gravamine, provocat ad superiorem iudicem criminis ignarum, et con- 
sueto diffugio appellationis, evehitur ad pastorale fastigium, qui non 
potest consulere populo, sed nocere, nec praestare regimen, sed augere 
discrimen. 

§ 15. Ne igitur improbi ingenii homines remedium appellationis, 
ad iustitiae praesidium institutum, callide traducant ad iniquitatis 
defensionem: optimum factu aliquibus fortasse videretur, si appella- 
tione quavis sublata, cura praeficiendi rectores animarum prorsus re- 
linqueretur Episcopis, rationem villicationis suae Christo iudici tantum 
reddituris. Verum nullo pacto probare id possumus, quod adversaretur 
menti Concilii Tridentini, tacite permittentis appellationem in devo- 
lutivo a mala relatione Examinatorum, quemadmodum innuere videntur 
verba illa: Nee praedictorum Examinatorum relationem, quominus 
executionem habeat, ulla devolutio, et appellatio, etiam ad Sedem 
Apostolicam, sive eiusde.1 Sedis Legatos, aut Vice-Legatos, aut Nuntios, 
seu Episcopos, aut Metropolitanos, Primates, vel Patriarchas inter po- 
sita impediat, aut suspendat. Cui sanctioni respondet etiam Constitutio 
Piana, admittens appellationem in devolutivo ab irrationabili iudicio 
E/piscopi. 

§ 16. Qua de re, ut in huiusmodi negotio apte omnia atque compo- 
site paragantur, officii Nostri esse duximus, eum vobis, ven. Fratres, 
gcrendarum rerum ordinem praescribere, quem longo usu utilem agno- 
vimus instituendis animarum rectoribus, qui eredito sibi eregi pracesse, 
et prodesse possint. 

I. Episcopus, habita notitia vacationis ecclesiae, statim, ad prae- 
scriptum Tridentini, idoneum in ea deputet Vicarium, cum congrua 
elus arbitrio fructuum portionis assignatione, qui onera ipsius eccle- 
siae sustineat, donee ei de rectore provideatur. 

II. Publico evulgetur edicto notitia concursus, congruo, et ab Epis- 





APPENDIX I 547 


copo praefinito tempore celebrandi: eodemque edicto omnes clare, et 
aperte moneantur, ut interim decurrente termino assignato, coram 
Cancellario Episcopali, vel altero ab Episcopo deputando, suarum 
qualitatum, meritorum, et munerum probationes, attestationes tam 
indiciales quam extraiudiciales, aliaque id genus documenta, quae fraude 
vacent, exhibeant. Alioquin, dicto termino elapso, documenta huiusmodi, 
quaecumque, et qualiacumque ea sint, nullatenus recipientur. 

III. Eveniente die coneursus, a Cancellaria Episcopali singulorum 
merita, qualitates, et requisita (ut vocant), incorrupta fide deprompta 
a iuribus tempore habili exhibitis, in scriptis summatim redigantur: 
porro copia epitomes tradetur non solum Episcopo, vel Vicario Generali 
vices illius obeunti, sed singillatim omnibus Examinatoribus ad con- 
cursum adscitis, ut cum de scientia, tum de vita, moribus, aliisque 
regendae ecclesiae necessariis dotibus ferant iudicium. 

IV. Die praestituta ab Episcopo habeatur concursus, servata accu- 
rate in omnibus forma tradita in supra relatis litteris anno 1721 editis, 
totaque rerum in eo gestarum series scriptis diligenter enucleetur. 
Pcrro Examinatores, ad assequendam certam, et indubiam coniecturam 
scientiae, postquam diligenter expenderint singulorum peritiam in 
evolvendo, explicandoque oretenus aliquo ecclesiasticae doctrinae capite, 
vel a SS. Patribus, vel a Sacro Concilio Tridentino, vel a Catechismo 
Romano excerpto, ac pari diligentia libraverint a quolibet seripto datas 
responsiones quaestionibus propositis; et postquam demum deprehende- 
rint qua quisque polleat gravitate sententiarum, et elegantia sermonis 
in conciuncula seripto pariter exarata, et textui evangelico, vel alteri 
dato themati accommodata: parem, ni forte maiorem solertiam Exami- 
natores adhibeant in perscrutandis aliis qualitatibus, regimini animarum 
consentaneis: morum honestatem inquirant, gravitatem, prudentiam, 
praestita hactenus Ecclesiae obsequia, acquisitam in aliis muneribus 
Jaudem, aliaque spectabilium virtutum ornamenta, doctrinae arcto foe- 
dere consocianda; hisce omnibus coniunctim expensis, inhabiles per 
sua suffragia reiiciant, et idoneos Episcopo renuntient. 

V. Absoluto concursu ab Episcopo, vel, eo impedito, a Vicario 
Generali una cum Examinatoribus Synodalibus non paucioribus quam 
tribus, notula compendiaria requisitorum antea distributa tradatur 
Cancellario, qui illam comburat, vel penes acta secreto eustodiat, et 
nemini ostendat, nisi de mandato Episcopi, vel eius Vicarii Generalis. 
Subinde vero Ordinarius, cum primum ei libuerit, eligat ex approbatis 
digniorem, nec illi possessio, ullo appellationis vel inhibitionis obtentu, 
retardetur. 

VI. Si quem clericorum appellare contigerit a mala relatione Exami- 
natorum, vel ab irrationabili iudicio Episcopi: coram iudice appella- 
tionis acta concursus integra omnino producat; et iudex, nisi illis visis, 


548 A PRACTICAL COMMENTARY 


et gravamine comperto, sententiam non pronunciet. Praeterea in 
ferenda sententia, ac reparando gravamine, idem iudex innitatur solum- 
modo probationibus ab actis elicitis, tam respectu doctrinae, quam alio- 
rum meritorum. Quia vero a publica indictione, usque ad diem habiti 
coneursus, tantum temporis intercessit quantum satis fuit commode 
exhibendis necessarlis iuribus, attestationibus, requisitis, aliisque meri- 
torum documentis; idcirco, ut quaevis via fraudibus praecidatur, volu- 
mus, ac districte mandamus, ne dictae attestationes, fides tam iudiciales, 
quam extraiudiciales, et documenta quaecumque studiose conquisita, et 
post concursum, ut aiunt, expiscata, ullo modo recipiantur. Non 
obstantibus supra memoratis litteris, a Congregatione Concilii Tri- 
dentini interprete anno 1721 editis, quibus, ad praemissorum effectum 
in hae parte derogamus, illis tamen in reliquis, una cum omnibus in 
eis contentis, firmiter in suo robore permansuris. 

VII. Ubi vero Episcopus, posthabito uno, vel altero ex approbatis, 
ecclesiam contulerit magis idoneo ob aliquam sibi ipsi tantum notam 
causam, quam censeat significari oportere iudici appellationis ad deter- 
gendam iniustae fortasse praeelectionis notam: familiaribus litteris 
iudicem certiorem efficiat, inviolabilis secreti lege adiecta. Nemo sit, 
qui hane praxim Nostrae tribuat solertiae, cum illa profluat a Tri- 
dentini Decretis, Sessione etenim 24, cap. 20 de Reform. ita dispo- 
nitur: Praeterea si quis in casibus a iure permissis appellaverit, 
aut de aliquo gravamine conquestus fuerit, seu alias, ob lapsum 
biennii, de quo supra, ad aliwm iudicem recurrerit, teneatur acta omnia 
coram Episcopo gesta ad iudicem appellationis expensis suis transferre, 
EQDEM TAMEN EPiIscOpoO PRIUS ADMONITO, UT SI QUID EI PRO CAUSAE 
INSTRUCTIONE VIDEBITUR, POSSIT IUDICI APPFLLATIONIS SIGNIFICARE. 

Et quamvis iure Nobis timendum sit, ne dicta praxis monendi 
iudicem, a quo appellatum est, in more olim posita, hae tempestate 
ohsoleverit, et a foro recesserit; attamen Episcopus (ut dictum est) si 
ex causa sibi tantum, et non aliis nota, quae tamen approbari digna 
sit, ecclesiam contulerit; illam iudici appellationis, datis secreto litteris, 
denunciet, et aperiat. Sciant porro iudices, delatas ab Episcopo causas, 
et rationes, inviolabilis secreti fide esse custodiendas, nee parvipenden- 
dum esse testimonium illius Pastoris, cui divino mandatur eloquio, oves 
suas agnoscere. Facile enim credi non potest, Episcopos suae non 
minus, quam alienae salutis adeo immemores, ut non deterriti divini 
mterminatione iudicii, odio vel favore moveantur; et in Sacrorum 
Canonum singularem iniuriam, dicant malum bonum, bonum malum, 
ponentes tenebras lucem, et lucem tenebras. 

Si vero Episcopo fuerit suspecta fides iudicis, ad quem appellatum 
est, nec eidem revelanda censuerit huiusmodi occulta rationum mo- 
menta: illa significet secretis litteris S. R. E. Cardinali Praefecto 





APPENDIX I 549 


pro tempore Congregationis Concilii, qui nee consilio, nee auctoritate 
deerit, quo minus a iudice appellationis debitus iustitiae locus tribuatur. 

§ 17. Praeterea quia aequitati etiam convenit, causas appellationis, 
quae magno litigantium dispendio, et Ecclesiae pernicie, immortales 
quandoque existunt, quanta fieri potest brevitate terminari: idcirco 
ubi a iudice appellationis lata sit sententia, quae praeelectioni factae 
ab Episcopo omnino sit conformis, nullas pateat novae appellationi 
aditus, sed auctoritate rei iudicatae controversiae finis imponatur. Sin 
vero iudex appellationis aliter, quam Ordinarius, pronunciaverit; liceat 
praeelecto ab Episcopo, qui causa cecidit, ad alium iudicem appellare, 
firmiter interim retenta parochialis ecclesiae possessione. Tandem post- 
quam tertius quoque iudex sententiam dixerit, ne partes ultra modum 
graventur laboribus, et expensis, praesertim quia agitur de cura ani- 
marum, cui damnosum est, certi Pastoris destitui solatio; is legitimum 
regendae ecclesiae ius obtineat, cui duae conformes assistunt sententiae, 
nec ullum novae appellationis remedium succumbenti suffragetur. 

§ 18. His sane regulis, quamvis appellatio sublata non sit, satis 
tamen praesidii comparatum esse arbitramur ecclesiasticae disciplinae, 
ac recto gerendarum rerum ordini. Unum superest, ut proposita 
hactenus media debitae executioni mandentur; eumque in scopum loco- 
rum Ordinarii vigilantiam suam desiderari non patiantur. Ferendum 
quippe non esset, ad nostri Apostolatus auditum novas in diem deferri 
querelas, ac submovendis abusibus novas implorari leges, ab iis, qui 
iam praestitutas negligunt et contemnunt. 

§ 19. Demum cum non raro contingat, ecclesias parochiales, digni- 
tates, canonicatus, aliaque beneficia curam animarum habentia, a Sede 
Apostolica esse conferenda; vel quia vacaverint in mensibus reservatis, 
vel quia ex alio capite dictae Sedi reservata sint; Nos Praedecessorum 
Nostrorum vestigiis inhaerentes, praecipimus, et mandamus, ut uno vel 
altero eveniente casu, concursus ab Episcopo sine ullo discrimine indi- 
eatur, nulla ad hune actum petita venia, vel licentia, quam Nostris 
hisce litteris sibi tributam Episcopi intelligant. 

§ 20. Absoluto concursu, si res sit de beneficiis curatis, quae tantum 
ratione mensium reservata sint, Episcopus inter approbatos eligat 
magis idoneum, et Datariae significet nec acta coneursus transmittat, 
nisi a Dataria, cum id opportunum duxerit, requirantur. Sin vero 
dicta beneficia, quibus cura imminet animarum, ex alio quovis capite, 
quam mensium Apostolicorum, Sanctae Sedi reservata sint; eo sane 
casu, veteri non immutato more, abstineat Episcopus a ferendo dignioris 
indicio, et acta concursus ultro Datariae exhibeat. 

§ 21. Licebit tamen Ordinariis, pro suo arbitrio, familiaribus litteris. 
Datario scriptis, eidem denunciare personam, quam censent regendae 
ecclesiae magis idoneam, eumdemque commoncre, an occulta aliqua, et 


550 A PRACTICAL COMMENTARY 


in actis iuste reticita subsit causa quae cuipiam obstet ad beneficium 
euratum obtinendum. Nos ipsi postmodum ab hae Sede omnium prin- 
cipe, et magistra, luculento edocebimus exemplo, quanti faciendum sit 
episcopale iudicium, quantoque vos honore prosequamur, venerabiles 
Fratres, in partem Nostrae sollicitudinis evocatos, quibus interim 
Apostolicam Benedictionem peramanter impertimur. Datum Romae 
apud S. Mariam Maiorem die xiv Decembris MDCCXLIL. Pontificatus 
Nostri anno tertio. 


DOCUM. V 


Constrrutio Benepictr PP. XIV “SacraMENTUM POENITENTIAE,” 
1 Iuni 1741 


Sacramentum Poenitentiae, quam secundam, post naufragium de- 
perditae gratiae, tabulam sancti Patres apte nuncuparunt, Nos licet 
immerentes ad universi dominici gregis curam superna dispositione 
vocati, omne studium, et pastoralem sollicitudinem adhibere tenemur, 
ne quod post amissam baptismi innocentiam datum est divina benigni- 
tate perfugium, per daemonum fraudem, et hominum Dei beneficiis 
perverse utentium malitiam, naufragis ae miseris peccatoribus luctu- 
osum evadat exitium; et. quod in salutem, et curationem animarum, 
a Deo, qui dives est in misericordia, institutum est, execrabili scelesto- 
rum quorumdam sacerdotum improbitate, in earum perniciem, atque 
interitum vertatur. 

§1. Dudum quidem a fel. record. Gregorio Papa XV Praedecessore 
Nostro per suas litteras in forma Brevium sub datum Romae apud 
Sanctam Mariam Maiorem die xxx Augusti mpcxxtt, Pontificatus sui 
apno secundo, sapienter provisum fuit contra quoscumque sacerdotes 
audiendis confessionibus deputatos, ad turpia et inhonesta sollicitantes ; 
et deinceps successivis temporibus, ad earum litterarum interpreta- 
tionem ac declarationem, plura subinde a Congregatione Venerabilium 
Fratrum Nostrorum Sanctae Romanae Ecclesiae Cardinalium adversus 
haereticam pravitatem generalium Inquisitorum sub die x1 mensis 
Februarii Anno Domini mpcxt, prodierunt decreta, et a rec. mem. 
Alexandro PP. VII pariter praedecessore Nostro in Congregatione 
Generali Sanctae Romanae Universalis Inquisitionis die xx1v Septem- 
bris MDCLXV coram eo habita, inter alias ab Evangelica veritate, et 
sanctorum Patrum doctrina alienas et dissonas propositiones, sexta 
videlicet, et septima, hue revocandae, damnatae, et prohibitae 
fuerunt. Nos itaque mature perpendentes quanti momenti sit 
ad aeternam animarum salutem ea ubique exacte observari, et quanti 





APPENDIX I 551 


ad infirmas oves curandas, et decorem Sanctae Ecclesiae Dei reti- 
nendum, intersit, ne aliqui sacerdotes Poenitentiae Sacramento nefarie 
abutentes, poenitentibus pro curatione vulnus, pro pane lapidem, pro 
pisce serpentem, pro medicina venenum porrigant, sed animo secum 
recolentes, se a Christo Domino praesides, et iudices animarum consti- 
tutos, ea sanctitate, quae sublimitati ac dignitati muneris convenit, tam 
venerandum Sacramentum administrent: Motu proprio, et ex certa 
scientia, ac matura deliberatione Nostra, praefatas litteras huiusmodi, 
ac omnia, et singula decreta praedicta ad illarum interpretationem et 
declarationem emanata, Apostolica auctoritate tenore praesentium 
approbamus et confirmamus, illisque omnibus et singulis inviolabilis 
Apostolicae firmitatis robur adiicimus; atque etiam, quatenus opus sit, 
denuo committimus et mandamus omnibus haereticae pravitatis Inqui- 
sitoribus, et locorum Ordinariis omnium regnorum, provinciarum, civi- 
tatum, dominiorum, et locorum universi Orbis Christiani, in suis re- 
spective dioecesibus, ut diligenter, omnique humano respectu postposito, 
inquirant, et procedant contra omnes, et singulos sacerdotes tam saecu- 
lares, quam regulares quomodolibet exemptos, ac Sedi Apostolicae 
immediate subiectos, quorumcumque Ordinum, Institutorum, Societa- 
tum, et Congregationum, et cuiuscumque dignitatis, et praeeminentiae, 
aut quovis privilegio, et indulto munitos, qui aliquem poenitentem, 
quaecumque persona illa sit, vel in actu sacramentalis confessionis vel 
ante, vel immediate post confessionem, vel occasione, aut praetextu 
confessionis, vel etiam extra occasionem confessionis in confessionali, 
sive in alio loco ad confessiones audiendas destinato, aut electo, cum 
simulatione audiendi ibidem confessionem, ad inhonesta, et turpia sol- 
licitare, vel provocare, sive verbis, sive signis, sive nutibus, sive tactu, 
sive per scripturam, aut tune aut post legendam, tentaverint, aut cum 
eis illicitos, et inhonestos sermones, vel tractatus temerario ausu habue- 
rint; et quos in aliquo ex huiusmodi nefariis excessibus culpabiles repe- 
rerint, in eos pro criminum qualitate et circumstantiis, severe animad- 
vertant, per condignas poenas, iuxta memoratam Gregorii Praedeces- 
soris Nostri constitutionem, quam hic de verbo ad verbum pro inserta 
haberi volumus: dantes etiam, si opus sit, et rursus concedentes facul- 
tatem, ne delictum tam enorme, et Ecclesiae Dei iniuriosum, remaneat, 
ob probationum defectum, impunitum, iam alias in praefata consti- 
tutione tributam, procedendi cum testibus etiam singularibus, dummodo 
plaesumptiones, indicia et alia adminicula concurrant. 

§ 2. Meminerint praetarea omnes et singuli sacerdotes ad confes- 
siones audiendas constituti, teneri se ac obligari, suos poenitentes, quos 
noverint fuisse ab aliis, ut supra, sollicitatos, sedulo monere, iuxta 
occurrentium casuum cireumstantias, de obligatione denunciandi Inqui- 
sitoribus, sive locorum Ordinariis praedictis, personam, quae sollici- 


552 A PRACTICAL COMMENTARY 


tationem commiserit, etiamsi sacerdos sit, qui iurisdictione ad absolu- 
tionem valide impertiendam careat, aut sollicitatio inter confessarium, 
et poenitentem mutua fuerit, sive sollicitationi poenitens consenserit, 
sive consensum minime praestiterit, vel longum tempus post ipsam 
sollicitationem iam effluxerit, aut sollicitatio a confessario, non pro se 
ipso, sed pro alia persona peracta fuerit. Caveant insuper diligenter 
confessaril, ne poenitentibus, quos noverint iam ab alio sollicitatos, 
sacramentalem absolutionem impertiant, nisi prius denunciationem 
praedictam ad effectum perducentes, delinquentem indicaverint com- 
petenti iudici, vel saltem se, cum primum poterunt, delaturos spondeant 
ae promittant. 

-§ 3. Et quoniam improbi quidem homines reperiuntur, qui vel odio, 
vel ira, vel alia indigna causa commoti, vel aliorum impliis suasionibus, 
aut promissis, aut blanditiis, aut minis, aut alio quovis modo incitati, 
tremendo Dei iudicio posthabito, et Ecclesiae auctoritate contempta, 
innoxios sacerdotes apud ecclesiasticos iudices falso sollicitationis insi- 
mulant: ut igitur tam nefaria audacia, et tam detestabile facinus 
metu magnitudinis poenae coerceatur, quaecumque persona, quae 
exsecrabili huiusmodi flagitio se inquinaverit, vel per se ipsam inno- 
centes confessarios impie calumniando, vel sceleste procurando, ut id 
ab alis fiat, a quocumque sacerdote quovis priyilegio, auctoritate, et 
dignitate munito, praeterquam a Nobis, Nostrisque Successoribus, nisi 
in fine vitae, et excepto mortis articulo, spe absolutionis obtinendae, 
quam Nobis et Successoribus praedictis reservamus, perpetuo careat. 

§4. Demum magnopere ecupientes a sacerdotalis iudicii, et sacri 
tribunalis sanctitate omnem turpitudinis occasionem, et Sacramentorum 
eontemptum, et Heclesiae iniuriam longe submovere, et tam exitiosa 
huiusmodi mala prorsus eliminare, et quantum in Domino possumus, 
animarum periculis occurrere, quas sacrilegi quidam, daemonis potius, 
quam Dei ministri, loco eas per Sacramentum Creatori suo ac nostro 
reconciliandi, maiori peccatorum mole onerantes, in profundum iniquita- 
tis barathrum nefarie submergunt, nonnullorum Venerabilium Fratrum 
Nostrorum Sanctae Romanae Ecclesiae Cardinalium, et aliquorum in 
theologia Magistrorum consilio desuper adhibito, accedentibus quoque 
iteratis plurium Episcoporum supplicationibus, hae Nostra in per- 
petuum valitura sanctione, quemadmodum a pluribus Episcopis per 
synodales suas constitutiones iam factum esse novimus, omnibus et sin- 
gulis sacerdotibus, tam saecularibus quam regularibus cuiuscumque 
Ordinis, ac dignitatis, tametsi alioquin ad confessiones excipiendas 
approbatis, et quovis privilegio et indulto, etiam speciali expressione, 
et specialissima nota et mentione digno suffultis, auctoritate A postolica, 
et Nostrae potestatis plenitudine interdicimus et prohibemus, ne aliquis 
eorum, extra casum extremae necessitatis, nimirum in ipsius mortis 

















> 


APPENDIX I 553 


articulo, et deficiente tune quocumque alio sacerdote qui confessarii 
munus obire possit, confessionem sacramentalem personae complicis in 
peceato turpi atque inhonesto, contra sextum Decalogi praeceptum 
commisso, excipere audeat, sublata propterea illi ipso iure quacumque 
auctoritate et iurisdictione ad qualemeumque personam ab huiusmodi 
culpa absolvendam; adeo quidem, ut absolutio, si quam impertierit, 
nulla atque irrita omnino sit, tanquam impertita a sacerdote, qui iuris- 
dictione ac facultate ad valide absolvendum necessaria privatus existit, 
quam ei per praesentes has Nostras adimere intendimus; et nihilo- 
minus, si quis confessarius secus facere ausus fuerit, maioris quoque 
excommunicationis poenam, a qua absolvendi potestatem Nobis solis, 
Nostrisque Successoribus dumtaxat reservamus, ipso facto incurrat. 

§ 5. Declarantes etiam, et decernentes, quod nec etiam in vim cui- 
uscumque lIubilaei, aut etiam Bullae, quae appellatur Cruciatae 
Sanctae, aut alterius cuiuslibet indulti, confessionem dicti complicis 
huiusmodi quisquam valeat excipere, eique sacramentalem absolutionem 
elargiri; cum ad hune effectum, et in hoe casu, nullus confessarius, 
utpote qui in huiusmodi peceati, et poenitentis genere, iurisdictione, 
ut praefertur, careat, et absolvendi facultate a Nobis privatus existat, 
habendus sit pro confessario legitimo, et’ approbato. Non obstantibus 
Constitutionibus, et Ordinationibus Apostolicis, praesertim quae nuncu- 
pantur Cruciatae Sanctae, vel Iubilaei Universalis et plenarii, necnon 
quibusvis Keclesiarum, et monasteriorum, et Ordinum quorumlibet, 
quorum ipsi sacerdotes fuerint, etiam iuramento, confirmatione Apos- 
tolica, vel quavis firmitate alia roboratis, statutis, et consuetudinibus, 
privilegiis quoque, indultis, et Litteris Apostolicis, sub quibuseumque 
tenoribus et formis, ac cum quibusvis clausulis, et decretis, etiam motu 
proprio, aut alias quomodolibet concessis, etiam iteratis vicibus appro- 
batis, et innovatis; quibus omnibus, eorum tenores praesentibus pro 
expressis habentes, hac vice dumtaxat specialiter et expresse derogamus, 
ceterisque contrariis quibuscumque. 

§ 6. Volumus demum ae praecipimus, ut omnes locorum Ordinarii, 
fam praesentes quam futuri pro tempore existentes, in approbatione 
confessariorum, tam praedictam Constitutionem Gregorii Praedeces- 
soris, quam praesentem hane Nostram, ab omnibus sacerdotibus appro- 
bandis attente legi et accurate observari curent, moneantque eos in 
Domino atque hortentur, ut sacrum ministerium ipsorum fidei commis- 
sum summa animi innocentia, morum -puritate, iudicii integritate 
peragant, exhibeantque semetipsos ut ministros Christi et dispensatores 
mysteriorum Dei. Memores praeterea sint se locum tenere, ac vices 
obire summi atque aeterni Sacerdotis, qui sanctus, innocens, impollutus, 
per Spiritum Sanctum semetipsum obtulit immaculatum Deo, ut emun- 
daret conscientiam nostram ab operibus mortuis, ad serviendum Deo 


554 A PRACTICAL COMMENTARY 


viventi: sedulo igitur studeant diligenterque caveant, ne quaerentibus 
et pulsantibus eorum culpa caelum claudatur; ne deperditae oves ad 
ovile dominicum redire properantes, eorum manibus ferarum dentibus 
dilaniandae tradantur; ne prodigi filii egentes et saucii ad coelestem 
Patrem revertentes, nefaria eorum improbitate, gravioribus peccatorum 
vulneribus, dum adhue in via sunt, confodiantur. 

§ 7. Ut autem praesentes Litterae ad omnium notitiam facilius deve- 
niant, et nemo illarum ignorantiam allegare valeat, volumus illas seu 
earum exempla ad valvas Ecclesiae Lateranensis, et Basilicae Principis 
Apostolorum, necnon Cancellariae Apostolicae, Curiaeque Generalis in 
Monte Citatorio, ac in Acie Campi Florae de Urbe, ut moris est, affigi 
et publicari, sicque publicatas et affixas, omnes et singulos, quos illae 
concernunt, perinde arctare et afficere, ac si unicuique eorum nomina- 
tim et personaliter intimatae fuissent: utque ipsarum praesentium 
Litterarum transumptis seu exemplis, etiam impressis, manu alicuius 
Notarii publici subscriptis, et sigillo alicuius personae in ecclesiastica 
dignitate constitutae munitis, eadem prorsus fides, tam in iudicio quam 
extra illud, ubique adhibeatur, quae ipsis praesentibus adhiberetur, si 
forent exhibitae vel ostensae. 

§ 8. Nulli ergo omnino hominum liceat paginam hane Nostrae volun- 
tatis, sanctionis, praecepti, mandati et derogationis infringere, vel ei 
ausu temerario contraire. Si quis autem hoe attentare praesumpserit, 
indignationem Omnipotentis Dei, ac BB. Petri et Pauli Apostolorum 
elus se noverit incursurum. Datum Romae apud S. Mariam Maiorem 
Anno Incarnationis Dominicae millesimo septingentesimo quadragesimo 
primo, Kalendis Iunii, Pontificatus Nostri Anno I. 

X. Sus-DarTARIvs. 

Pro D. Carp. PAssionEo 
CAIETANUS AMATUS. 


ConstituTio Grecorit PP. XV “Universi,” 30 Auvaustr 1622 


Universi Dominici gregis curam, quamquam immeriti, caelesti dis- 
positione gerentes, sedulo invigilare tenemur, ut ab omnibus pravis 
contagis conservetur immunis, multoque maiori studio providere, ut 
omnis pestis ab lis avertatur, quibus alios sanandi officium est com- 
missum, ne quod Evangelica scripta Nos admonent, sale infatuato non 
sit, in quo saliatur, et ad nihilum prosit ultra, nisi ut mittatur foras, 
et conculcetur ab hominibus. 

§1. Quoniam autem a Romanis Pontificibus Praedecessoribus 
nostris quibusdam in locis provisum fuit, ut impium, ac nefandum 
scelus, quod non solum inter Christifideles non esse, sed nec etiam 
nominari debet, procul ab iis arceatur, videlicet, ut aliquis Sacerdos 





APPENDIX I 555 


as sacras audiendas confessiones deputatus, sacrosancto Poenitentiae 
Sacramento, solicitando poenitentes ad turpia, abutatur, ac pro medi- 
cina venenum, pro pane aspidem porrigat, et ex caelesti medico infer- 
nalis veneficus, ex patre spirituali proditor execrabilis animarum red- 
datur: idcirco Nos ea, quae his perniciosissimis diaboli insidiis arcendis 
certis locis salubriter constituta sunt, ut nullibi desiderentur, quantum 
ex alto conceditur, providen. duximus. 

§ 2. Alias siquidem a fel. rec. Pio Papa Quarto Praedecessore 
nostro emanarunt literae tenoris subsequentis, videlicet: Pius Papa 
Guartus Venerabili Fratri, Archiepiscopo Hispalen. in Regnis Hispa- 
marum haereticae pravitatis Inquisitori generali. Cum sicut nuper, 
non sine animt nostri molestia, accepimus, diversos Sacerdotes in 
Regnis Hispaniarum, atque etiam in eorum Civitatibus, et Dioecesibus 
curam animarum habentes, sive eam pro aliis exercentes, aut alias 
audiendis confessionibus poenitentium deputati, in tantum proruperint 
imiquitatem, ut Sacramento Poenitentiae in actu, audiendi confessiones 
abutantur, nec alli, et qui id institutt Domino Deo, et Salvatori nostro 
Jesu Christo iniuriam facere vereantur: mulieres videlicet poenitentes 
ad actus inhonestos, dum earum audiunt confessiones alliciendo, et 
provocando, seu allicere, et provocare tentando, et procurando, ac loco 
earum per Sacramentum huiusmodi Creatori nostro reconciliationis, 
graviort peccatorum mole eas onerando, et in manibus Diaboli tra- 
dendo, in Divinae Maiestatis offensam, et animarum perniciem, et 
Christifidelium scandalum non modicum. 

§ I. Nos in animum, inducere nequeuntes, quod qui de Fide Catho- 
lica recte sentiunt, Sacramentis in Ecclesia Dei institutis abutantur, 
aut illis iniuriam faciant, fraternitati tuae, de cuius eximia pietate, 
virtute, atque doctrina plurimum in Domino confidimus, per praesentes 
committimus, et mandamus, quatenus per te, vel per alium, seu alios 
a te deputandum, seu deputandos contra omnes, et singulos Sacerdotes 
dictorum Regnorum, ac illarum Civitatum, et Dioecesum de praemissis 
quomodolibet diffamatos, tam saeculares, quam quorumvis etiam exemp- 
torum, ac Sedi Apostolicae immediate subiectorum Ordinum Regu- 
lares, cuiuscumque dignitatis, status, gradus, ordinis, conditionis, et 
praeeminentiae existant, tam super praemissis, quam super Fide Ca- 
tholica, et quid de ea sentiant, diligenter inquiras, et iuxta facultatum 
tibt contra haereticos, aut de haeresi quovis modo suspectos a Sede 
Apostolica concessarum continentiam, et tenorem procedas, ac culp- 
abiles repertos iuxta excessuum suorum qualitatem, prout iuris fuerit, 
punias, eos etiam si, et prout de iure fuerit faciendum, debita prae- 
cedente degradatione saecularis Iudicis arbitrio puniendos tradendo. 

§ II. Non obstantibus, ete. 

§ 3. Igitur, ut literae praedictae perpetuis futuris temporibus, et 


556 A PRACTICAL COMMENTARY 


ubique locorum inviolabiliter observentur, Motu proprio, et ex certa 
scientia, ac matura deliberatione nostra, ac de consilio Venerabilium 
fratrum nostrorum 8. R. EK. Cardinalium contra haereticam pravitatem 
generalium Inquisitorum praeinsertas literas huiusmodi, ac omnia, et 
singula in eis contenta Apostolica auctoritate tenore praesentium ap- 
probamus, et confirmamus, illisque omnibus, et singulis inviolabilis 
Apostolicae firmitatis robur adiicimus, illasque non solum in praedictis 
Hispaniarum Regnis, sed in quibusvis Christiani Orbis partibus 
firmiter, et inviolabiliter observari praecipimus, et mandamus. 

$4. Ac praeterea ne in futurum de poena his delinquentibus 
imponenda, et de modo contra eosdem procedendi ab aliquo dubitari 
possit, statuimus, decernimus, et declaramus, quod omnes, et singuli 
Sacerdotes tam seculares, quam quorumvis, etiam quomodolibet ex- 
emptorum, ac Sedi Apostolicae immediate subiectorum Ordinum, Insti- 
tutorum, Societatum, et Congregationum Regulares cuiuscumque digni- 
tatis, et praeeminentiae, aut quovis privilegio muniti existant, qui per- 
sonas, quaecumque illae sint, ad inhonesta, sive inter se, sive cum aliis 
quomodolibet perpetranda in actu Sacramentalis confessionis, sive 
antea, sive post immediate, seu occasione, vel praetextu confessionis 
huiusmodi etiam ipsa confessione non sequuta, sive extra occasionem 
confessionis in Confessionario, aut in loco quocumque, ubi confessiones 
Sacramentales audiuntur, seu ad confessionem audiendam electo, simu- 
lantes ibidem confessiones audire, sollicitare, vel provocare tentaverint, 
aut cum eis illicitos, et inhonestos sermones, sive tractatus habuerint, 
in officio Sanctae Inquisitionis severissime, ut infra, puniantur. Et 
praeterea omnes haereticae pravitatis Inquisitores, et locorum Ordi- 
narlos omnium Regnorum, Provinciarum, Civitatum, Dominiorum, et 
locorum universi Orbis Christiani in suis quemque Dioecesibus, et 
Territoriis per has nostras literas, etiam privative quoad omnes alios 
specialiter, ac perpetuo Iudices delegamus, ut super his contra prae- 
dictos, simul, vel separatim in omnibus, prout in causis fidei, iuxta 
Sacrorum Canonum formam, necnon officii Inquisitionis huiusmodi Con- 
stitutiones, privilegia, consuetudines, et decreta diligenter inquirant, 
et procedant; et quos in aliquo ex huiusmodi nefariis excessibus cul- 
pabiles repererint, in eos pro criminum qualitate, et circumstantiis, 
suspen. ab executione ordinis, privationis beneficiorum, dignitatum, et 
officiorum quorumeumque, ac perpetuae inhabilitatis ad illa, necnon 
vocis activae, et passivae, si regulares fuerint, exilii, damnationis ad 
triremes, et carceres etiam in perpetuum absque ulla spe gratiae, poenas 
decernant, eos quoque si pro delicti enormitate graviores poenas merue- 
rint, debita praecedente degradatione, Curiae seculari puniendos tradant. 

§ 5. Dantes etiam facultatem Venerabilibus Fratribus Nostris S. R. 
EK. Cardinalibus generalibus Inquisitoribus, ne delictum tam enorme, 








APPENDIX I 557 


et Ecclesiae Dei tam perniciosum remaneat, ob probationum defectum, 
impunitum, cum difficilis sit probationis, testibus etiam singularibus 
concurrentibus, praesumptionibus, indiciis, et aliis adminiculis, delic- 
tum probatum esse arbitrio suo iudicandi, et Curiae seculari, ut prae- 
fertur, reum tradendum esse, pronunciandi. 

§ 6. Non obstan. omnibus, quae dictus Praedecessor in suis literis 
praedictis voluit non obstare, caeterisque contrariis quibuscumque. 

§7. Mandantes omnibus Confessariis, ut suos poenitentes, quos 
noverint fuisse ab aliis, ut supra sollicitatos, moneant de obligatione 
denunciandi sollicitantes, seu ut praefertur, tractantes, Inquisitoribus, 
seu locorum Ordinariis praedictis: quod si hoc officium praetermise- 
rint, vel poenitentes docuerint non teneri ad denunciandum Confes- 
sarios sollicitantes, seu tractantes, ut supra, iidem locorum Ordinarii, 
et Inquisitores illos pro modo cvlpae punire non negligant. 

§ 8. Volumus autem, ete. 


DOCUM. VI. 
Ex ConstituTione Pautr PP. III “Aurrrupo,” 1 Iuni 1537. 


. . . Sane cum sicut, non sine grandi et spirituali mentis nostrae 
laetitia, accepimus, quamplures incolae occidentalis et meridionalis 
Indiae, licet divinae sint legis expertes, S. Spiritu tamen cooperante, 
illustrati, errores, quos hactenus observarunt, penitus ab eorum men- 
tibus et cordibus abiecerint, ac fidei catholicae veritatem et S. Ecclesiae 
unitatem amplecti, et secundum ritum eiusdem Romanae Ecclesiae 
vivere desiderent et proponant. . . . Super eorum vero matrimoniis 
hoe observandum decernimus, ut qui ante conversionem plures iuxta 
eorum mores habebant uxores, et non recordantur quam primo acce- 
perint, conversi ad fidem, unam ex illis, accipiant, quam voluerint, ut 
cum ea matrimonium contrahant per verba de praesenti, ut moris est; 
qui vero recordantur quam primo acceperint, aliis dimissis, eam retine- 
ant. Ac eis concedimus, ut coniuncti etiam in tertio gradu tam con- 
sanguineitatis, quam affinitatis, non excludantur a matrimoniis contra- 
hendis donee huic S. Sedi super hoe aliud visum fuerit statuendum. .. 


, DOCUM. VII 
Constitutio 8. Pir PP. V “Romanr Ponriricis,’ 2 Avgustr 1571 


Romani Pontificis aequa et cireumspecta providentia, ne ea quae 
pro salubri Indorum noviter ad fidem conversorum directione sanciri 


558 A PRACTICAL COMMENTARY 


debent et terminari, alicuius haesitationis scrupulo subiaceant, declara- 
tionibus et aliis opportunis consuevit providere remediis. Cum itaque, 
sicut accepimus, Indis in sua infidelitate manentibus plures permit- 
tantur uxores, quas ipsi etiam levissimis de causis repudiant, hine fac- 
tum est quod recipientibus baptismum permissum sit permanere cum 
ea uxore, quae simul cum marito baptizata existit; et quia saepenumero 
contingit illam non esse primam coniugem, unde tam ministri quam 
Episcopi gravissimis scrupulis torquentur, existimantes illud non esse 
verum matrimonium; sed quia durissimum esset separare eos ab 
uxoribus, cum quibus ipsi Indi baptismum susceperunt, maxime quia 
difficillimum foret primam coniugem reperire: ideo Nos, statui dicto- 
rum Indorum paterno affectu benigne consulere, atque ipsos Episcopos 
et ministros ab huiusmodi scrupulis eximere volentes, motu proprio 
et ex certa scientia Nostra, ac apostolicae potestatis plenitudine, ut 
Indi, sic ut praemittitur baptizati, et in futurum baptizandi, cum uxore, 
quae cum ipsis fuerit baptizata et baptizabitur, remanere valeant, tan- 
quam cum uxore legitima, aliis dimissis, apostolica auctoritate, tenore 
praesentium, declaramus, matrimoniumque huiusmodi inter eos legitime 
consistere ete. 


DOCUM. VIII 
ConstituTio Grecorir PP. XIII “Porvuuis,” 25 Ianvarir 1585 


Populis ac nationibus nuper ex gentilitatis errore ad fidem catho- 
licam conversis expedit indulgere circa libertatem contrahendi matri- 
monia, ne homines, continentiae servandae minime assueti, propterea 
minus libenter in fide persistant, et alios illorum exemplo ab eius per- 
ceptione deterreant. Quoniam igitur saepe contingit multos utriusque 
sed praecipue virilis sexus infideles, post contracta gentili ritu matri- 
monia, ex Angola, Aethiopia, Brasilia, et aliis Indicis regionibus, ab 
hostibus eaptos, a patriis finibus et propriis coniugibus in remotissimas 
regiones exterminari, adeo ut tam ipsi, captivique qui in patria rema- 
nent, si postea ad fidem convertantur, coniuges infideles tam longo 
locorum intervallo disiunctos, an sine contumelia Creatoris secum coha- 
bitare velint, ut par est, monere nequeant, vel quia interdum ad hostiles 
et barbaras provincias ne nuntiis quidem accessus pateat, vel quia 
ignorent prorsus in quas regiones fuerint transvecti, vel quia itineris 
Icngitudo magnam afferat difficultatem: idcirco Nos, attendentes huius- 
medi connubia inter infideles contracta, vera quidem, non tamen adeo 
rata censeri, ut necessitate suadente dissolvi non possint, talium gen- 
tium infirmitatem paterna pietate miserati, universis et singulis dicto- 
rum locorum Ordinariis et parochis, et presbyteris Societatis Iesu ad 








APPENDIX I 559 


confessiones audiendas ab eiusdem Societatis Superioribus approbatis 
et ad dictas regiones pro tempore missis vel in illis admissis, plenam 
auctoritate Apostolica, tenore praesentium, concedimus facultatem dis- 
pensandi cum quibuscumque utriusque sexus Christifidelibus incolis 
dictarum regionum et serius ad fidem conversis qui ante baptisma sus- 
ceptum matrimonium contraxerunt, ut eorum quilibet, superstite coniuge 
infideli, et elus consensu minime requisito, aut responso non expectato, 
matrimonia cum quoyis fideli alterius etiam ritus contrahere et in 
facie Keclesiae solemnizare, et in eis postea carnali copula consummatis 
quoad vixerint remanere licite valeant: dummodo constet etiam sum- 
marie et extraiudicialiter, coniugem, ut praefertur, absentem moneri 
legitime non posse, aut monitum intra tempus in eadem monitione 
praefixum suam voluntatem non significasse; quae quidem matrimonia, 
etiamsi postea innotuerit coniuges priores infideles suam voluntatem 
luste impeditos declarare non potuisse, et ad fidem etiam tempore 
contracti secundi matrimonii conversos fuisse, nihilominus rescindi 
nunquam debere, sed valida et firma, prolemque inde suscipiendam legi- 
timam fore decernimus. Non obstantibus ete. 


APPENDIX II 


SUMMARY OF CENSURES AND OTHER PENALTIES 
INCURRED AUTOMATICALLY (late sententie) 


I. EXCOMMUNICATIONS 


A. EXCOMMUNICATIONS RESERVED IN A Most Sprecran MANNER TO 
THE APOSTOLIC SEE 


(1) For casting away, carrying off, or keeping for evil purpose the 
Blessed Sacrament (Canon 2320). 

(2) For laying violent hands on the person of the Roman Pontiff 
(Canon 2343, § 1). 

(3) For giving absolution or pretended absolution of one’s own 
accomplice in a sin of impurity (Canon 2367). 

(4) For direct violation of the seal of confession by confessor 
(Canon 2369, § 1). 

(5) For several violations of the laws on the election of the Roman 
Pontiff (Canon 2330). 


B. EXCOMMUNICATIONS RESERVED IN A SpecIAL MANNER TO THE 
APOSTOLIC SEE 


(1) For apostasy, heresy, schism (Canon 2314, §§ 1-2). 

(2) For suspicion of heresy when the persons do not amend within 
six months from date of admonition (Canon 2315). 

(3) For publishing books of heretics, schismatics, or apostates 
defending heresy, schism, apostasy; for defending, reading or keeping 
the aforesaid books or books condemned by name by Apostolic letters 
(Canon 2318, § 1). 

(4) For pretending to say Mass or hear Sacramental Confession 
by one who is not an ordained priest (Canon 2322, § 1). 

(5) For appealing to an cumenical Council against the Supreme 
Pontiff (Canon 2332). 

(6) For having recourse to the civil authorities to impede the acts 
of the Holy See or its Legates; injuring or terrorizing persons for 
reason of such acts (Canon 2333). 

(7) For the issuance of laws, precepts or orders violating the 


560 








APPENDIX II 561 


rights and freedom of the Church; recourse to civil authorities for 
the purpose of interfering with ecclesiastical jurisdiction (Canon 2334). 

(8) For instituting suit in the civil courts against a Cardinal, 
Legate of the Holy See, major official of the Roman Curia, or one’s 
own Ordinary (Canon 2341). 

(9) For laying violent hands on the person of a Cardinal, Legate 
of the Holy See, patriarch, archbishop, or bishop (Canon 2343, § 2). 

(10) For the usurpation and retention of goods and rights of the 
Papacy (Canon 2345). 

(11) For the forgery of documents of the Apostolic See and de- 
liberate use of such documents (Canon 2360). 

(12) For the false denunciation of a confessor of the crime of 
solicitation (Canon 2363), 


C. EXCOMMUNICATION RESERVED Simpty TO THE ApostTotic SEE 


(1) In profiteering from indulgences (Canon 2327). 

(2) For joining the Freemasons or similar sects (Canon 2335). 

(3) For absolving without faculties from excommunication re- 
served either in a most special or in a special manner to the Apostolic 
See (Canon 2338, § 1). 

(4) For assisting or favoring an excummunicatus vitandus in the 
crime for which he was excommunicated; for communicating with such 
a person by admitting him to divine services (Canon 2338, § 2). 

(5) For instituting a suit in the civil courts against a bishop, an 
abbot or prelate nullius, or a supreme head of religious organization — 
of papal law (Canon 2341). 

(6) For the violation of the enclosure of nuns; in the case of nuns, 
for leaving enclosure illegally (Canon 2342, § 1). 

(7) For the violation of the enclosure of monasteries of religious 
men in solemn vows (Canon 2342, § 2). 

(8) For the usurpation of ecclesiastical goods (Canon 2346). 

(9) For fighting a duel, for issuing or accepting a challenge to the 
same, and for assisting, favoring, or purposely witnessing it (Canon 
2351). 

(10) In the case of clerics in sacred orders and religious in solemn 
vows, and their partners, for attempting marriage (Canon 2388, § 1). 

(11) For the commission of simony in ecclesiastical pee bene- 
fices, or dignities (Canon 2392). 

(12) For destroying, hiding, carrying off, or altering a document 
of the episcopal Curia during a vacancy of the episcopal see (Canon 
2405). 


562 A PRACTICAL COMMENTARY 


D. ExCcoMMUNICATIONS RESERVED TO THE ORDINARY 


(1) For contracting marriage before a non-Catholic minister, or 
making an agreement that a child or children shall be educated outside 
the Catholic Church, or offering a child for baptism to a non-Catholic 
minister; parents and those taking the parents’ place for having chil- 
dren educated in a non-Catholic religion (Canon 2319, § 1). 

(2) For making, selling, distributing, or exposing false relics for 
public veneration (Canon 2326). 

(3) For laying violent hands on clerics or religious (Canon 2343, 
§ 4). 

(4) For the effective procuring of abortion (Canon 2350, § 1). 

(5) For apostasy from a laical or a non-exempt religious organi- 
zation (Canon 2385). 

(6) For marriage by a religious bound to perpetual simple vows 
(Canon 2388). 


E. NON-RESERVED EXCOMMUNICATIONS 


(1) Authors and publishers of books of the Bible for publishing 
them without permission (Canon 2318, § 2). 

(2) For forcing the ecclesiastical burial of infidels, apostates, 
heretics, schismatics, or excommunicated or interdicted persons whose 
excommunication or interdict has been pronounced by a competent 
ecclesiastical superior (Canon 2339). 

(3) For the alienation of ecclesiastical goods without the required 
beneplacitum Apostolicum (Canon 2347, n. 3). 

(4) For forcing a man to embrace the clerical state, and forcing a 
man or woman to enter the religious state (Canon 2352). 

(5) For neglecting to denounce the confessor who is guilty of 
solicitation (Canon 2368, §2). 


II. INTERDICTS 


A. IntTERpDICcT SPECIALLY RESERVED TO THE APOSTOLIC SEE 
Moral persons appealing to an Ccumenical Council against the 
Supreme Pontiff (Canon 2332). 
B. IntEerpict RESERVED TO THE ORDINARY 


Persons who grant ecclesiastical burial to infidels, apostates, 
heretics, schismatics, or excommunicated or interdicted persons after 





APPENDIX II 563 


a declaratory or condemnatory sentence of excommunication or inter- 
dict (Canon 2339). 


C. Non-RESERVED INTERDICTS 


(1) For celebrating or making others celebrate divine services in 
interdicted places; for admitting clerics excommunicated, interdicted, 
or suspended by declaratory or condemnatory sentence to the celebra- 
tion of divine services forbidden by the censure (Canon 2338, § 3). 

(2) The interdict against persons who are the cause of a local 
interdict or of an interdict on a college or community (Canon 2338, 


§ 4). 


III. SUSPENSIONS 
A. SUSPENSIONS RESERVED TO THE APOSTOLIC SEF 


(1) For conseecrating a bishop without Apostolic mandate (Canon 
2370). 

(2) For the reception of orders through simony; for the admin- 
istration or reception of other sacraments through simony (Canon 
2371). 

(3) For the reception of orders from a notorious apostate, heretic 
or schismatic, or from one who is excommunicated, suspended or inter- 
dicted by declaratory or condemnatory sentence (Canon 2372). 

(4) For ordaining a non-subject without dimissorial letters, or 
one’s own subject without testimonial letters or without a canonical 
title, or a religious domiciled in another diocese (Canon 2373). 

(5) The suspension of religious in sacred orders whose profession 
was declared invalid for reason of deceit (Canon 2387). 

(6) The suspension of chapters and communities and others con- 
cerned who admit elected, presented or nominated persons to offices, 
benefices or dignities, before they have obtained and exhibited the 
letters of appointment (Canon 2394, n. 3). 


B. Suspensions RESERVED TO THE ORDINARY 


(1) For suing in the civil court another cleric or religious without 
permission of local Ordinary (Canon 2341). 

(2) The suspension of religious in sacred orders becoming a fugi- 
tive from his organization (Canon 2386). 


564 A PRACTICAL COMMENTARY 


C. NON-RESERVED SUSPENSIONS 


(1) For hearing confessions without jurisdiction, or absolving from 
reserved sins without faculties (Canon 2366). 

(2) For maliciously presenting oneself for ordination without 
dimissorials, or before the canonical age, or without observing due 
Sequence in the reception of orders (Canon 2374). 

(3) For resigning an ecclesiastical office, benefice, or dignity into 
the hands of laymen (Canon 2400). 

(4) Abbots and prelates nullius for neglecting to receive the ab- 
batial blessing within the prescribed time (Canon 2402). 

(5) Vicar-capitular (administrator of vacant diocese) for issuing 
dimissorial letters in violation of the precept of Canon ate pabey 
(Canon 2409). 

(6) Religious superiors for unlawfully sending their subjects for 
ordination to a strange bishop (Canon 2310). 








APPENDIX III 


SUMMARY OF THE DOCUMENTS OF THE ROMAN PONTIFF 
AND THE SACRED CONGREGATIONS AFFECTING THE 
LAWS OF THE CODE. 


(1) Decree of the Sacred Congregation of Seminaries and Uni- 
versities, August 7, 1917, ordered that the Code of Canon Law be 
adopted as the text-book of Canon Law in all ecclesiastical universi- 
ties and schools of Canon Law. The disposition of the subject matter 
of Canon Law, as contained in the books, titles and chapters of the 
Code, is to be faithfully followed. If the professor desires the students 
to use some book as a help to the study of the Code, the book must 
be one that adapts itself to the order of subjects as given in the 
Code (Acta Ap. Sedis, IX, 439). 


(2) The Motu Proprio of Pope Benedict XV, September 15, 1917, 
established the Committee for the Authentic Interpretation of the 
Code. The Sacred Congregations shall not issue new General Decrees 
unless the needs of the Universal Church eall for them. Otherwise 
the Sacred Congregations have the duty to urge the faithful observance 
of the Code, and to issue Instructions by which the precepts of the Code 
are explained and their observance made effective. If a new General 
Decree becomes necessary and it disagrees with the Code, the Sacred 
Congregation shall inform the Supreme Pontiff of the fact. After the 
Supreme Pontiff has approved the Decree, it shall be submitted to the 
Sacred Congregation of the Council, which shall adapt the Decree to 
the form of the Canons of the Code. If the new Decree differs from 
some precept of the Code, the Sacred Congregation of the Council 
shall indicate what Canon is to be replaced by the new Decree; if 
the Decree covers a point on which the Code is silent, the Sacred 
Congregation shall indicate where the new Canon is to be placed, and 
it shall get the number of the Canon immediately preceding with the 
annotation bis, ter, ete. (Acta Ap. Sedis, IX, 483). 

(3) Various declarations on former laws abolished by the Code. 

(a) Are the dispositions of the Council of Baltimore in reference 
to the right of nominating the administrator of a vacant diocese still 
in force, or have they been abolished by the Code? Answer: They 
have been abolished. 


565 


566 A PRACTICAL COMMENTARY 


Is Canon 427 to be applied in the case of vacancy of a bishopric 
(i.e., whether the diocesan consultors elect an administrator)? <An- 
swer: Yes, Canon 427 applies; if the peculiar circumstances at present 
make the application of Canon 427 impossible, the Sacred Consistorial 
Ccngregation shall issue temporary instructions as to the manner of 
appointment of the diocesan administrator, but the bishop shall have 
absolutely no right to nominate a man who at his death shall take 
the office of administrator (Committee for the Authentic Interpreta- 
tion of the Code, November 24, 1918; Acta Ap. Sedis, XI, 75). 

Because of the special circumstances obtaining in the United States 
of North America, the Sacred Consistorial Congregation issued a 
Decree, which was to be in force for three years, stating that in all 
dioceses where there were not at least five or six diocesan consultors 
the archbishop—or in case of vacancy of the archbishopric, the senior 
suffragan bishop of the province—shall nominate the diocesan admin- 
istrator, which nomination is to be submitted for ratification to the 
Apostolic Delegate (Sacred Consistorial Congregation, February 22, 
1919; Acta Ap. Sedis, XI, 75). This Decree was extended to the 
diceeses of Canada and Newfoundland by Decree of the Sacred Con- 
sistorial Congregation, May 8, 1919 (Acta Ap. Sedis, XI, 233). 

(b) Are the Decrees of the Sacred Congregation of Bishops and 
Regulars, July 18, 1902, ad I, and January 15, 1903, ad I and II, in 
reference to the manner of making simple and solemn profession in 
orders of nuns in accordance with the Decree “Perpensis” of May 3, 
1902 (cfr. Acta S. Sedis, XXXV, 31), still in force after the promul- 
gation of the Code, which demands that only temporary vows be taken 
before solemn profession? Answer: No, they are abolished. The 
Sacred Congregation further declares that all those rites and cere- 
monies which indicate the perpetuity of the religious state must be 
reserved until solemn profession; for the profession of the temporary 
vows it suffices, in accordance with Canon 577, that it be accepted by 
the legitimate superior in person or by a delegate; the individual 
constitutions must be consulted to ascertain what superior is entitled 
to accept the profession (Sacred Congregation of Religious, July 10, 
1919; Acta Ap. Sedis, XI, 323). 

(c) Does Canon 824 abolish the Decree of the Sacred Congrega- 
tion of the Council, October 15, 1915 (Acta Ap. Sedis, VII, 401), in 
which it was forbidden to receive any remuneration, even for ex- 
trinsic labor or inconvenience, for the saying of the second or third 
Mass on All Souls’ Day? Answer: The Decree is abolished (Com- 
mittee for the Authentic Interpretation of the Code, December 13, 
1923; Acta Ap. Sedis, XVI, 116). 

(ad) Does Canon 838 abolish the law of a Provincial Couneil by 








APPENDIX III 567 


which the priests are forbidden to transfer Mass stipends to priests 
outside their own diocese without permission of their Ordinary? An- 
swer: In reference to foundation Masses and Masses ad instar manu- 
alium and Masses given for the benefit of a charitable institute (causa 
pia), the law of the Provincial Council remains in force; in reference 
to other Mass stipends, Canon 838 applies. This Canon permits 
priests to transfer manual Mass stipends to priests outside the diocese, 
which permission of the common law cannot be taken away or re- 
stricted by authorities inferior to the Holy See (Sacred Congrega- 
tion of the Council, February 19, 1921; Acta Ap. Sedis, XIII, 228). 

(e) Does Canon 924 abolish the Decree of Pope Alexander VII, 
February 6, 1657, which has been renewed by each Supreme Pontiff 
ai the beginning of his Pontificate and lastly by Pope Benedict XV, 
September 5, 1914, and which ordains that the so-called Apostolic 
indulgences attached to prayer beads and other religious objects are 
granted in such a manner that they do not profit other persons except 
those for whom the objects were blessed or to whom they were first 
given, and that the indulgences cannot be gained if these objects are 
given to others? Answer: Those Decrees are abolished, and the sacred 
objects lose their indulgences only when the blessed objects are sold 
or destroyed (Sacred Penitentiary, February 18, 1921; Acta Ap. 
Sedis, XIII, 164). 

(f) Is the Constitution “Provida,’ January 18, 1906, abolished 
because it is a particular law opposed to the precept of Canon 1099 
(cfr. Canon 6, n. 1), or is it a privilege or indult which, in accordance 
with Canon 4, remains intact? Answer: The Constitution is abolished 
(Committee for the Authentic Interpretation of the Code, March 30, 
1918; Archiv fiir katholisches Kirchenreht, IC, 61). The Code rules 
that the marriage of a Catholic contracted outside the Chureh (before 
a non-Catholic minister, justice of the peace) is invalid; the above- 
mentioned Constitution had granted that the marriage of a non-Catholic 
with a Catholic outside the church by Germans within Germany was 
valid, though illicit. 

(g) The Holy See was requested to declare what course of action 
the priest should take who assists at a marriage of a Catholic and 
non-Catholic, in which the promises are not made? Answer: He must 
in all things conform to the Code of Canon Law (Sacred Congrega- 
tion of the Holy Office, November 26, 1919; Archiv ftir katholisches 
Kirchenrecht, C, 28). Canon 1061 states that the Church does not 
dispense with the impediments of mixed religion or disparity of cult, 
unless the promises are made. Canon 1102 prescribes that the priest 
must ask for and receive the consent. Contrary Decrees and Indults of 
the Holy See are abolished. 


568 A PRACTICAL COMMENTARY 


(nh) Is Canon 1252 on the days of abstinence and fast obligatory 
everywhere, notwithstanding particular laws, ete.? Answer: Canon 
1252 is obligatory (Committee for the Authentic Interpretation of 
the Code, January 3, 1918; Archiv. fiir katholisches Kirchenrecht, IC, 
63). 

(i) Are holydays of obligation which are kept in some country 
or diocese by reason of particular laws, ancient custom or special 
concession of the Holy See, but which are not among the days enumer- 
ated by the Code in Canon 1247 as holydays of obligation, abolished 
by the Code in so far as the duty of hearing Mass and abstaining 
from servile work is concerned? Answer: Those days are abolished 
as holydays of obligation (Committee for the Authentic Interpretation 
of the Code, February 17, 1918; Acta Ap. Sedis, X, 170). 

(4) Various declarations on laws not abolished by the Code. 

(a) Are the precepts of the Holy See with regard to Modernism, 
contained in the Constitution “Pascendi Dominici Gregis” and the 
Motu Proprio “Sacrorum Antistitum,” abolished by the Code, since 
no mention is made of them in the Code? Answer: They are not 
abolished, but remain in force until the Holy See shall declare other- 
wise, but they could not be incorporated in the Code because of their 
transitory character (Sacred Congregation of the Holy Office, March 
22,1918; Acta Ap. Sedis, X. 136). 

(b) Are the precepts of the Decree “Inter reliquas,” of the Sacred 
Congregation of Religious, January 1, 1911, with reference to the re- 
ligious forced by the civil law to undergo military training, still in 
force. Answer: They are in force. 

Must novices who are liable for military training take temporary 
vows at the end of the novitiate in the manner prescribed by Canon 
574? Answer: No, they shall make temporary vows to last until they 
begin the military service (Sacred Congregation of Religious, July 15, 
1919; Acta Ap. Sedis, XI, 321). 

(c) The Decree, forbidding priests to promote or favor dancing and 
to be present if dances are arranged by laymen, was specially passed 
for the U. S. In many places in the United States the pastor and 
people together arranged entertainments in the parish hall for the 
purpose of raising funds for the parish as well as of affording recre- 
ation for the Catholic people and their friends under the supervision 
of the priest. Dances were one of the forms of entertainment. The 
Third Plenary Council of Baltimore forbade dinners with balls for the 
purpose of raising money for the parish or other good cause. It seems 
that the plain dances were not considered in many dioceses to be 
against the prohibition of the Council of Baltimore. The Decree of 
March 3, 1916, forbids the priests to promote or favor (ne promoveant, 




















APPENDIX III 569 


ne foveant) dances for the benefit of the parish, and forbids the priests 
to be present if they are arranged by laymen (Sacred Consistorial Con- 
gregation, March 31, 1916; Acta Ap. Sedis, VIII, 147). 

Canon 140 forbids clerics to be present at shows, dances and cele- 
brations which are unbecoming to the clerical state or where their 
presence causes scandal. Inasmuch as a particular law which is 
not contrary to the Code is not abolished by the Code, (efr. Canon 22), 
the Decree of March 31, 1916, on dancing remains in force, for though 
Canon 140 forbids the presence of the priest at dances and other 
amusements only when they are unbecoming to the clerical state or 
cause scandal, the aforesaid Decree cannot be considered contrary 
to the Code; it is rather an extension of the prohibition contained in 
the Third Plenary Council of Baltimore. 

(5) Retroactive force of laws. 

(a) The Holy See was asked to decide whether the prohibitions of 
Canon 642 declaring that secularized religious cannot obtain certain 
offices and positions applies also to religious who were secularized 
before the promulgation of the Code? Answer: Canon 642 applies 
also to religious secularized before the promulgation of the Code (Com- 
mittee, November 24, 1920; Acta Ap. Sedis, XII, 575). Canon 642 
is a re-enactment of the Decree of the Sacred Congregation of Re- 
ligious, June 15, 1909 (Acta Ap. Sedis, I, 523). 

(0b) The Holy See was requested to declare whether the simple 
perpetual vows made in religious orders of men or women before the 
solemn profession prior to the promulgation of the Code are subject 
to the former laws in reference to the manner of dismissal of those 
religious and the effects of the dismissal? Answer: Yes, they are 
subject to the former laws (Committee, October 16, 1919; Acta Ap. 
Sedis, XI, 476). The Code abolishes the perpetual vows after the 
novitiate in all religious orders of solemn vows, and demands that 
the novices make temporary vows before solemn profession (cfr. 
Canon 574). 

(c) In reference to impediments of marriage abolished by the 
Ccde the following questions arose: 

(1) Whether spiritual relationship contracted before Pentecost, 
1918, which then was an impediment of marriage but is no impedi- 
ment any longer in virtue of Canon 768 (which restricts the cases of 
spiritual relationship as impediments of marriage), ceases auto- 
matically with the promulgation of the Code in reference to all conse- 
quences of that relationship, or whether it ceases as impediment of 
marriage only? Answer: The spiritual relationship merely ceases to 
be an impediment of marriage; duties arising out of that relationship 


570 A PRACTICAL COMMENTARY 


(e.g., care for the spiritual interest of the godchild in Confirmation) 
remain (Committee, June 2-3, 1918; Acta Ap. Sedis, X, 346). 

(11) Has the Code retroactive force with reference to the modifica- 
tions introduced by the Code concerning betrothal and impediments 
of marriage, both impedient and diriment, so that every right acquired 
by valid betrothal cannot be claimed in any manner except in so far 
as the Code concedes, and impediments of marriage contracted prior 
to the Code and now abolished by the Code do not need any dispensa- 
tion? Answer: The Code has no retroactive force (cfr. Canons 4 
and 10), but betrothal and marriage are governed by the law in 
force at the time when these contracts were made or will be made; 
as to the right of action from betrothal, Canon 1017 applies (Com- 
mittee, June 2-3, 1918; Acta Ap. Sedis, X, 346). The reason is that 
the right of action is now modified by the Code, and all actions which 
are brought after the promulgation of the Code must necessarily be 
judged by the law of procedure of the Code. 

(iii) What is to be said concerning a marriage contracted before 
the Code became law, and which was rendered invalid by an impedi- 
ment which has been abolished by the Code? Does such a marriage 
become valid by the very promulgation of the Code, or does it need 
a dispensation, sanatio, ete., even after the promulgation of the Code? 
Answer: They are not automatically validated by the promulgation 
of the Code but need dispensation, sanatio, ete. (Committee, June 2-3, 
1918; Acta Ap. Sedis, X, 346). 

(d) The time required for prescription against immovable ecclesi- 
astical property by the former Canon law was forty years. In Canon 
1511, the Code appoints a shorter period of thirty years. What rule 
must be applied to prescriptions which have already been started under 
the former law? The rule is that the former law applies to prescrip- 
tion which were started under the former law, except only in cases 
where the difference of time stated by the former and the new law 
is so great that the period of time ordained by the new law has elapsed 
before the period of the former law has been completed (e.g., if the 
old law required one hundred years for prescription, the new law 
only forty; now, if at the promulgation of the new law one had 
already fifty years of prescription under the old law, he does not have 
to wait fifty more years but only the forty years of the new law 
counting the years from the time that the new law came into force). 
This rule was applied by the Sacred Roman Rota in a recent case 
(June 21, 1924; Acta Ap. Sedis, XVI, 478). 

(e) Particular laws not contrary to the Code remain in foree (cfr. 
Canon 22). Now, the law exempts strangers from the observance of 








APPENDIX III d71 


particular laws. In some dioceses the Holy See has ordered that the 
abstinence during Lent be observed on Wednesdays and Fridays, in- 
stead of Fridays and Saturdays as the Code ordains. The question 
arose whether strangers passing through these dioceses are obliged 
to keep the abstinence days as observed there by special law, or whether 
they must keep the Fridays and Saturdays as ordained by the com- 
mon law? Answer: They are bound to keep abstinence either on 
Wednesday or on Saturday, whichever they prefer (Sacred Congrega- 
tion of the Council, February 9, 1924; Acta Ap. Sedis, XVI, 94). 
Filling * explains the answer of the Sacred Congregation by the fact 
that both the common and the particular law agree in substance (two 
days’ abstinence each week); wherefore the strangers are obliged to 
observe abstinence on two days, but a choice is given them between 
the days of the common and the particular law. 

(6) Domicile (Canon 93). 

Can a woman maliciously deserted by her husband acquire, in ac- 
cordance with Canon 93, a proper domicile distinct from that of her 
husband? Answer: No, unless she has obtained from the ecclesiasti- 
cal judge perpetual separation or separation for an indefinite period 
cf time (Committee, July 14, 1922; Acta Ap. Sedis, XIV, 526). 

(7) Various decrees on the obligations of clerics. 

(a) Are pastors and parochial vicars of religious organizations 
obliged to undergo the examination, spoken of in Canon 130, before 
the Ordinary or his delegate, if they have made the examination be- 
fore the religious superior or his delegate, spoken of in Canon 5902 
Answer: No. 

If the religious superior neglects to subject the pastors and parochial 
vicars to the examination spoken of in Canon 590, can the local Ordi- 
nary force those religious to make the examination before himself or 
his delegate in accordance with Canon 130? Answer: Recourse must 
be had in that case to the Sacred Congregation of Religious (Commit- 
tee, July 14, 1922; Acta Ap. Sedis, XIV, 526). 

(6) Does a bishop who is about to celebrate a Pontifical Mass sat- 
isfy the obligation of reciting the Canonical Hour (Tierce or None) 
by the recital of the prayers prescribed by the Ceremoniale Episco- 
porum? Answer: Yes, he does satisfy it. 

Does the bishop satisfy the respective obligation of the Divine 
Office when he pontificates at Vespers or Lauds, in processions on the 
days of the major or minor litanies, and does not recite those parts 
of the office which, according to the Ceremoniale Episcoporum, the 
choir or chanters have to recite or sing? Answer: No, he does not 
satisfy unless he is actually prevented from the recitation of those 


1 Hilling, ‘‘Codicis Juris Canonici Interpretatio,’’ 9. 


5712 A PRACTICAL COMMENTARY 


parts by some ceremony demanded by the rubrics of the Ceremoniale 
Episcoporum [Sacred Congregation of the Council, April 12, 1919, 
and July 9, 1921 (in Causa Linciensi), Acta Ap. Sedis, XIII, 477]. 

(c) Does the Code of Canon Law give liberty to all the secular 
clergy to wear a beard, and have the bishops authority to enforce the 
prohibition thus far in vogue in their respective dioceses? Answer: 
No, the Code does not grant such permission (cfr. Canon 136), and 
the bishop may forbid it (Sacred Congregation of the Council, Janu- 
ary 10, 1920; Acta Ap. Sedis, XII, 43). 

(d@) Can the bishop forbid the clerics of his diocese to engage in 
quiet hunting under ipso facto suspension? Answer: No, he cannot 
unless there are grave and special reasons for such a severe prohibi- 
tion. According to the former law, the Ordinary ean absolutely for- 
bid his clerics even the quiet hunting, and this authority is not 
restricted by the Code, but grave and special reasons must exist if 
he wants to enforce his prohibition with so severe a penalty (Sacred 
Congregation of the Council, June 11, 1921; Acta Ap. Sedis, XIII, 
498). 

(e) Are the permissions required by clerics in virtue of the Decree 
“Docente Apostolo,” November 18, 1910 (Acta Ap. Sedis, II, 910), to 
be obtained from the Holy See or from their own proper Ordinary? 
Answer: From their own Ordinary (Committee, June 2-3, 1918; Acta 
Ap. Sedis, X, 344). Canon 139 deals with various secular offices and 
positions which clerics should not hold, and specifies the eases in which 
the Holy See and the Ordinary respectively may grant permission to 
clerics to accept such offices. ' 

Can Cardinals, archbishops, and residential or titular bishops, in 
accordance with Canon 139, § 4, accept the office of senator or repre- 
sentative or compete for it? Answer: No; but, if by the law of the 
country Cardinals, archbishops, or bishops are by the very fact of 
holding these ecclesiastical positions entitled to a seat in the senate or 
in the house of representatives, and the Holy See has in any way 
approved of such laws, they may without special permission of the 
Holy See fill these offices provided they attend to their ecclesiastical 
duties through the vicar-general or some one else. In any other ease, 
however, the Cardinals, archbishops, and residential or titular bishops 
need the permission of the Holy See to hold those secular offices. 

Should local Ordinaries rather discourage than encourage priests 
who desire to compete for the office of representative? Answer: They 
should rather discourage them from seeking office (Committee, April 
25, 1922; Acta Ap. Sedis, XIV, 313). 

(f) Concerning the seminaries and studies of seminarians, the Holy 
Father Pope Pius XI gives to the Cardinal Prefect of the Sacred 








APPENDIX III 573 


Congregation of Seminaries and Universities directions which the Sa- 
cred Congregation is to urge in its supervision of Seminaries and 
Catholic Universities: (1) The priests are to be urged to comply with 
the precept of Canon 1353 to endeavor to promote vocations for the 
priesthood, by taking a special interest in boys who give indication 
of a vocation to the priesthood, by trying to keep them from the con- 
tagion of the world, by leading them on to piety, and by teaching 
them and foster their vocation. (2) No other students shall be allowed 
to stay in the seminary, except those who intend to study for the 
priesthood. (3) The Latin language must be thoroughly taught in the 
minor seminary, so that the seminarians may have no difficulty in the 
major seminary where the classes and recitations are, of course, in 
Latin. (4) The seminarians must as a minimum have two years of 
philosophy; it is to be scholastic philosophy, and the professors should 
follow the doctrine and principles of St. Thomas Aquinas. (5) Theol- 
ogy should be taught from the Sacred Scriptures, from the documents 
of the Roman Pontiffs, the Fathers of the Church and the Councils. 
The historical method alone of teaching dogmas and contrary errors 
is not sufficient. (6) Pastoral theology must teach the seminarians 
to apply the theology they have learned to the care of souls. That 
course must consider the practical problems of the guidance of souls 
and the application of the unchanging principles of faith and morals to 
the ever-changing conditions of the people (August 1, 1922; Acta Ap. 
Sedis, XIV, 449). 

Concerning the faculty of Sacred Scripture at seminaries, Pope 
Pius XI ordained by Motu Proprio that such office shall be given only 
to those who have taken the special course at the Biblical Commission 
or the Biblical Institute at Rome, and obtained at least the degree of 
baccalaureate (April 27, 1924; Acta Ap. Sedis, XVI, 180). 

(g) Concerning the attendance of secular clerics at laical univer- 
sities the Holy See rules that, without the permission of his own 
bishop, no secular cleric may attend such university. The bishop is 
not permitted to send clerics to such a university before they have 
been ordained priests, and he should send those only who will be an 
honor to the Church and the priesthood, both by reason of their mental 
faculties and their holiness of life. If they are junior priests, they 
are not exempt from the yearly examinations prescribed by Canons 
130 and 590, but should be examined more rigorously lest, while pur- 
suing secular sciences, they should neglect ecclesiastical studies. After 
they have graduated from those universities, they must remember that 
they are obliged to obey their Ordinary and to serve the diocese just as 
other priests, and they may not without the permission of their bishop 
accept a professor’s chair in the secular universities or any other 


574 A PRACTICAL COMMENTARY 


office. If they disobey, they shall be punished, even with suspension. 
What is said concerning the secular clerics, applies also to the religious, 
including regulars; and what is here stated concerning the local Ordi- 
nary, applies to the major superiors of the religious organizations 
(Sacred Consistorial Congregation, April 30, 1918; Acta Ap. Sedis, 
Diy aes 

(h) Concerning the emigration of priests from Europe or countries 
bordering on the Mediterranean Sea to America or the Philippine 
Islands, the Holy See ordains: 

Priests of the Latin Rite who wish to go to these countries for a 
long or an indefinite period of time, must obtain the permission of 
their own Ordinary; the vicar-general or the vicar-capitular cannot 
grant this permission. The Ordinary may give this permission only 
to priests who are his own subjects by a canonical title, and they must 
have served in their diocese for several years. They must be men of 
high mental and moral standing, and they must have a good motive for 
desiring to emigrate (eg., to attend to the spiritual needs of their 
countrymen, or to go to places where priests are needed, or to regain 
their health, etc.). The bishop who grants leave to his priest to go to 
America or the Philippine Islands must, before issuing permission, 
enter into direct correspondence with the Ordinary of the place to 
which the priest wants to go, give him the proper information on the 
life and character of the priest, and ask him whether he is willing to 
employ him in the ecclesiastical ministry (not merely allow him to 
say Mass), if the priest is able to work. Unless he gets an affirmative 
answer to his question, he shall not permit the priest to leave. The 
bishop who is requested to admit the priest to the ecclesiastical min- 
istry in his diocese, shall not accept him unless he has work for him. 

The letters by which the bishop grants the priest permission to go 
to America or the Philippine Islands shall explicitly state whether the 
permission to leave is temporary, or permanent, or at the will of the 
bishop, shall mention the fact that the other bishop has agreed to 
accept him, and shall describe the priest sufficiently so that no mistake 
ecneerning his identity is possible; otherwise the letters are of no value. 

The Ordinaries of Italy may not issue letters granting permission 
to go to America or the Philippine Islands, but, after they have made 
the arrangements with the other bishop, shall submit the matter to 
the Sacred Consistorial Congregation, which shall issue the letters 
granting permission and forward them to both bishops. The same 
applies to the bishops of Spain and Portugal, with this difference that 
the Legates of the Apostolic See in those countries shall issue the let- 
ters of permission. 


APPENDIX III 575 


Priests who have obtained legitimate permission to go to America 
or the Philippine Islands should be permitted to exercise the sacred 
ministry also in places through which they pass, if they are detained 
there for some time through illness or any other just cause, unless 
some special and extraordinary reason exists why the priest can not 
_ be permitted to exercise the sacred ministry. Priests who have been 
Icgitimately permitted to emigrate may also, with the consent of both 
bishops and the observance of the laws of the Code on incardination, 
be incorporated in a diocese in America or the Philippine Islands. 
With the consent of the bishop who first received them and the bishop 
to whose diocese they wish to go, such priests may later transfer to 
another diocese. Their own bishop in Europe must be as soon as 
possible notified of the transfer; in case of Italian, Spanish or Portu- 
guese priests, the Holy See or the respective Legate of the Holy See 
who gave the permission to emigrate must be notified. The new bishop 
who received the priest into his diocese has the obligation to notify 
the proper Ordinary of the priest, or the Holy See, or the Papal 
Legate. The Ordinaries are instructed by the Holy See not to permit 
the immigrant priests to live in private houses, or in boarding houses 
or hotels, but in houses under ecclesiastical supervision, or in the parish 
rectory, or in some religious house. If the priests do not obey, the 
bishop shall give them peremptory warning, and, if they fail to obey 
the warning, he shall forbid them to say Mass. 

While they are members of the community, religious may be sent 
by their superiors in Europe to other houses of the same organization 
in America or the Philippine Islands, but the Holy See warns the 
superiors to take care to send only men who are well educated and of 
blameless character. 

Religious who have obtained temporary permission to live outside 
their own organization (exclaustrati) and secularized religious are sub- 
ject to the same laws as secular clerics, in reference to emigration to 
America and the Philippine Islands. 

If such clerics desire to go to these countries for a short time, not 
exceeding six months, they do not need to find a bishop who is willing 
to employ them in the ecclesiastical ministry. It suffices that they 
have a good reason to go, and obtain permission from their own 
Ordinary, who shall indicate in his letters the reason for the journey 
and the time of the leave of absence granted to the priest. In the case 
of Italian, Spanish or Portuguese priests, the beneplacitum of the 
Holy See or of the Papal Legate must be obtained. The Ordinary 
who allows his cleric to travel to America or the Philippine Islands 
must see that the cleric has sufficient money, not only to reach his 


576 A PRACTICAL COMMENTARY 


destination, but also for the return trip; he shall insist that the money 
for the return trip be deposited with some bank, or safely kept in 
some other manner, so that the lack of money may not prevent his 
return. Religious who are temporarily separated from their organi- 
zation (exclaustrati) and secularized religious are subject to this law 
like secular clerics. 

If, at the expiration of the leave of absence, the cleric cannot 
return at once for reason of illness or any other necessity or just 
cause, the Ordinary of the place where the priest stays may prolong 
the leave of absence, but must at once inform the priest’s proper Ordi- 
nary, and the Holy See, or the Papal Legate, who gave the beneplaci- 
tum for the leave of absence. 

These laws apply also to priests who assist emigrants either of 
their own choice or at the request of an emigration society. Priests 
who do not obey these laws, and in defiance of them emigrate, are 
automatically suspended a divinis, and, if they nevertheless dare to say 
Mass, they incur irregularity, from which penalties they can be absolved 
only by the Sacred Consistorial Congregation (Sacred Consistorial 
Congregation, December 30, 1918; Acta Ap. Sedis, XI, 39). 

(8) Appointment to and loss of ecclesiastical offices. 

(a) Concerning the Constitution of Pope Pius X “Vacante Sede 
Apostolica,” on the election of the Supreme Pontiff, the Holy Father, 
Pope Pius XI, by Morty Proprio decrees the following modifications: 

(i) In order to give Cardinals who live at a great distance from 
Rome more time to get there for the election of the new Roman 
Pontiff, the ten days’ interval between the death of the Pope and the 
commencement of the election proceedings is extended to fifteen days. 
Besides, the Supreme Pontiff grants the Sacred College of Cardinals 
leave to delay entrance into the Conclave for two or three days more, 
but, when eighteen days after the death of the Pope have elapsed, the 
Cardinals who are present in Rome must at once enter into the Con- 
clave and proceed with the election of the Pope. 

(ii) Though, according to Title II, Chapter II, 38, of the Consti- 
tution “Vacante Sede Apostolica,”’ each Cardinal may have two at- 
tendants in the Conclave, either clerics or laymen, or one cleric and 
one layman, they may, if they prefer, take only one man into the 
Conclave, and he may be a layman. 

(iii) According to Title II, Chapter V, 54, only one Mass is to 
be said on the first morning of the Conclave, and all the Cardinals 
are to attend that Mass and receive Holy Communion. Now, Pope 
Pius XI grants leave to each Cardinal to say Holy Mass, but, if any 
of them do not wish to say Mass, they are to receive Holy Communion 





APPENDIX III | 577 


at the Mass of the Conclave (Motu Proprio of Pope Pius XI, March 
1, 1922; Acta Ap. Sedis, XIV, 145). 

(6) In ease postulation concurs with election (cfr. Canon 180, § 1) 
and the votes in the first three ballots cast are divided between a 
person who can be postulated only and a person who ean be elected, 
and neither has obtained two-thirds of all the votes east, nor does the 
eligible person have the absolute plurality of votes but merely a rela- 
tive plurality, is the eligible person elected on the relative plurality ? 
Answer: Yes, in the third ballot he is elected on a relative plurality 
to the exclusion of the one postulated. 

If, besides the one postulated, several persons who can be elected 
have received votes, is the eligible person who (in the third ballot) 
has received a relative plurality of votes elected? Answer: Yes, 
among those who can be elected that one is validly elected who has 
received a relative plurality of votes, not counting the votes cast for 
the one postulated (Committee, July 1, 1922; Acta Ap. Sedis, XIV, 
406). 

(c) May the Ordinary, in accordance with Canon 189, validly ac- 
cept the resignation after the lapse of an entire month from the 
tendering of the resignation without a renewal of the same? Answer: 
Yes, he may, provided the person resigning has not revoked his resig- 
nation and notified the Ordinary of the fact before he accepts the 
resignation. 

May the resigning person, in accordance with Canon LOLS ORL re- 
voke the resignation before it has been accepted? Answer: Yes, he 
may (Committee, July 14, 1922; Acta Ap. Sedis, XIV, 526). 

(9) Ordinary and delegated jurisdiction (Canon 210). 

May the bishop habitually communicate to the priests of his terri- 
tory the faculty of blessing with indulgences rosaries and other re- 
ligious articles, spoken of in Canon 349, n. 1? Answer: No, he can- 
not (Sacred Penitentiary, July 18, 1919; Acta Ap Sedis, XI, 332). 
Canon 210 lays down the general principle that the power of orders, 
both delegated and ordinary, cannot be delegated to others, unless the 
law or indult expressly grants the power of delegation. 

(10) Various declarations concerning parishes (Canon 216). 

(a) With reference to parishes which were erected in dioceses while 
they were under the jurisdiction of the Sacred Congregation of the 
Propagation of the Faith, and which were later on placed under the 
common law of the Church, various doubts arose as to the nature 
of these parishes and the rights and duties of the pastors. The 
Sacred Consistorial Congregation declared: 

(i) From Canon 216 it is certain that the parts of the dioceses 


578 A PRACTICAL COMMENTARY 


over which a rector has been appointed for the care of souls in his 
district are in future to be considered as parishes, and are to be called 
such, reserving the name of quasi-parishes or missions for the dis- 
tricts into which vicariates and prefectures Apostolic are divided. 

(ii) For the erection of parishes a decree of the Ordinary is in- 
deed required, determining the boundary lines of the parish, its rev- 
enue for the conducting of the divine worship and the maintenance of 
the priest, but it is not necessary that the rector be irremovable; on the 
contrary, if there are just reasons, the removability may be declared 
in the document of erection of the parish, in accordance with Canons 
1411, n. 4, 454, and 1438. 

(iii) If the small number of the faithful, or a fluctuating Catholic 
population, or a complete lack of proper funds. makes it inadvisable 
to erect some churches as parishes, they should be made subsidiary 
churches or chapels depending on and joined to the territory of some 
parish, until such time as they can be made independent parishes. 

(iv) With reference to the endowment of new parishes one must 
keep in mind what is stated in Canons 1409, 1410 and 1415. 

(v) When a parish has been erected as described above, the rector 
or pastor or administrator of the parish is obliged to apply Mass 
for the people of the parish on Sunday and holydays; the rectors of 
subsidiary churches or chaplaincies are exempted from that obliga- 
tion. If the burden is too great, recourse is to be made to the Holy 
See (Sacred Consistorial Congregation, August 1, 1919: Acta Ap. 
Sedis, XI, 346). 

(b) As some doubts remained as to the canonical status of par- 
ishes in the United States of America which were erected before the 
promulgation of the Code, the Committee for the Authentic Interpre- 
tation of the Code issued the following declarations: 

(1) No special or formal decree of erection of a parish by the 
bishop is required. 

(11) It suffices for the erection of a parish if the Ordinary define 
the territorial limits and assign a rector to the people and the church. 

(iii) With reference to the parishes established before the promul- 
gation of the Code, those parishes became ipso facto canonical par- 
ishes, and no decree of erection is necessary, but only the fixing of the 
territorial limits and the appointment of a pastor to take charge of 
such territory (September 26, 1921; communicated to the Bishops of 
the United States by Letters of the Apostolic Delegation at Washing- 
ton, November 10, 1922). 

(c) With reference to language parishes, the question arose whether 
in countries where several official languages are in vogue, but which 
politically form but one state, the bishop needs an Apostolic Indullt, 


APPENDIX III 579 


in virtue of Canon 216, § 4, to erect a parish which is exclusively 
destined for the people of a certain language, though that language 
be one of the official languages of the state, and though the pari-h 
has its own territorial boundaries? Answer: Yes, he needs the per- 
mission of the Holy See to erect such parishes (Committee, May 20, 
1923; Acta Ap. Sedis, XVI, 113). 

(11) Competency of the various Sacred Congregations (Canons 
246-257). 

(a) The Committee for the Authentic Interpretation of the Code 
issued the following answers: 

(1) Does the faculty to concede to the members of religious organiza- 
ticns, men or women, a dispensation from the Eucharistic fast for the 
reception of Holy Communion pertain to the Sacred Congregation of 
the Sacraments or to the Sacred Congregation of Religious? Answer: 
To the Sacred Congregation of Religious. 

(ii) Are matters regarding the obligations attached to major orders 
or the validity of sacred ordination of religious to be decided by the 
Sacred Congregation of the Sacraments or by the Sacred Congrega- 
tion of Religious? Answer: By the Sacred Congregation of the Sacra- 
ments in accordance with Canon 1993. 

(iii) Is the Sacred Consistorial Congregation or the Sacred Con- 
gregation of the Council competent in the following affairs: (a) with 
reference to priests, either students or professors, in laical schools; 
(8) associations of the clergy and their federation; (y) erection and 
suppression of one or another dignity in Chapters already constituted ; 
(6) matters pertaining to the revenue and goods of the mensa epis- 
copalis? Answer: (a) the Sacred Congregation of the Council; (f) 
the Sacred Congregation of the Council, but this Congregation shall 
not fail to ask information of the Sacred Consistorial Congregation 
with reference to associations and confederations of the clergy of en- 
tire nations; (y) and (§) the Sacred Consistorial Congregation. 

(iv) Does the concession of the faculty to alienate goods which 
belong to diocesan seminaries pertain to the Sacred Congregation of 
Seminaries and Universities or to the Sacred Congregation of the 
Council? Answer: To the Sacred Congregation of Seminaries and 
Universities (November 13 and 27, 1922; Acta Ap. Sedis, XV, 39). 

(6) Do all questions which concern some right or advantage or 
interest of some religious family or of religious members pertain ex- 
clusively to the Sacred Congregation of Religious? Answer: Yes, in 
the sense, however, of Canon 251. 

Does the concession (with due observance of the customary rules) 
of sanations and condonations for the past and reductions for the 
future in connexion with the obligations attached to chaplaincies and 


580 A PRACTICAL COMMENTARY 


other legacies, which, though not entrusted to the religious Order or 
family as such, are erected in or transferred to their churches, per- 
tain tc the Sacred Congregation of the Council or rather to the Sacred 
Congregation of Religious? Answer: Exclusively to the Sacred Con- 
gregation of Religious for the time that the administration and ful- 
fillment of the obligations of legacies is entrusted to the religious. 

What Sacred Congregation is competent to grant to the religious 
a dispensation for the reception of sacred orders, either in the case of 
lack of required age, or irregularity, or other conditions for the con- 
ferring of orders, or the required studies before the various orders? 
Answer: The Sacred Congregation of Religious. 

What Sacred Congregation is competent to grant dispensation to 
religious who, for reason of illness or for other reasons are physically 
or morally prevented from saying Mass (e.g., if they cannot stand on 
their feet long enough to say Holy Mass)? Answer: The Sacred Con- 
gregation of Religious (Special Committee of Cardinals, March 24, 
1919; Acta Ap. Sedis, XI, 251). 

(c) The Committee for the Authentic Interpretation of the Code 
declares that it shall answer only questions proposed by Ordinaries, 
major religious superiors of orders and congregations, etc., and not 
those proposed by private individuals unless they propose them through 
their own Ordinary (December 9, 1917; Acta Ap. Sedis, X, HES 

(2) May doubts of minor importance or which do not offer much 
difficulty be answered by the President of the Committee for the Au- 
thentic Interpretation of the Code? Answer: Yes (Committee, De- 
cember 9, 1917; Acta Ap. Sedis, XI, 480). 

(12) Vicars and prefects Apostolic. 

Have vicars and prefects Apostolic the right in their own territory 
to be mentioned in the Canon of the Mass (cfr. Canons 294 and 308) ? 
Answer: No, they do not have that right according to the Rubrics and 
Decrees, because, in accordance with the law still in force, in the 
Canon of the Mass—after the words “Antistite nostro”—is to be in- 
serted only the name of the patriarch, archbishop, or bishop who is 
the local Ordinary of the diocese in which the Mass is said (Sacred 
Congregation of Rites, March 8, 1919; Acta Ap. Sedis, XI, 145). 

(ad) Canon 300 prescribes that the bishops, vicars and prefects 
Apostolic and the superiors of missions who are under the jurisdiction 
of the Sacred Congregation of the Propagation of the Faith make a 
complete report on the spiritual and material condition of their mis- 
sion district every five years, as is prescribed by Canon 340 for all 
local Ordinaries. The Sacred Congregation of the Propaganda had 
published a list of questions to be answered by the Ordinaries in the 
mission districts, June 1, 1877. Since the Code has made some changes 


APPENDIX III 581 


and rearrangements, the Sacred Congregation publishes a new list of 
questions to be answered in the report (Sacred Congregation of the 
Propagation of the Faith, April 16, 1922; Acta Ap. Sedis, XIV, 
287, sqq.). 

(13) Duties and rights of bishops. 

(a) What are the suppressed feasts spoken of in Canons 339 and 
466, on which the bishops and pastors are obliged to say Holy Mass 
for the people? Answer: In this matter, no change has been made in 
the former discipline (Committee, February 17, 1918; Acta Ap. Sedis, 
x, ai 0)): 

(b) The official list of the suppressed feasts on which, in virtue of 
Canons 339 and 466, the bishops and pastors must say Mass for the 
people, was published by the Sacred Congregation of the Council, 
December 28, 1919 (Acta Ap. Sedis, XII, 42.) Cfr. Volume I, n. 251. 

(c) With reference to the quinquennial report on the state of the 
diocese to be made to the Holy See by the bishops in accordance with 
the precept of Canon 340, the Sacred Consistorial Congregation pub- 
lished a lengthy formula or questionnaire which the bishops must em- 
ploy in making said report (November 4, 1918; Acta Ap. Sedis, X, 
487). 

(d) With reference to the privileges, insignia and functions of 
bishops, either when performing pontifical functions in their own 
diocese or in that of another bishop, or when several bishops take part 
in the sacred ceremonies, there are a number of liturgical difficulties 
which are now officially decided by the Sacred Congregation of Rites, 
November 26, 1919 (Acta Ap. Sedis, XII, 177; cfr. H omiletic and Pas- 
toral Review, August, 1920, 1070-1074). 

(14) Right of precedence of the vicar-general. 

Has the vicar-general the right of precedence over the prior and 
pastor of the cathedral church, and has he the right of precedence 
over all dignitaries and canons of the cathedral church, when he assists 
in the choir vested with the robes of the canons? Answer: In both 
cases he has the right of precedence (Sacred Congregation of the 
Council, May 17, 1919; Acta Ap. Sedis, XI, 349). 

If the vicar-general is not a canon, has he the right to a place 
in choir and in acts of the Chapter, and precedence over all canons 
and dignitaries? Answer: Yes, he has, in accordance with Canon 370 
(Sacred Congregation of the Council, December 15, 1923; Acta Ap. 
Sedis, XVI, 371). 

(15) Concerning chapters of canons. 

(a) Is the bishop obliged, in virtue of Canon 395, § 1, to set apart 
for daily distributions for cathedral and collegiate Chapters one-third 
of the revenue of said Chapters, though in these churches the choral 


582 A PRACTICAL COMMENTARY 


distributions, however small they be, originated by Apostohe privilege? 
Answer: Yes (Committee, October 16, 1919; Acia Ap. Sedis, XI, 
477). 

(6) Have persons who are absent from choir in virtue of an 
Apostolic indult which grants them the right to the daily distributions 
with the exception of the portion that is destined exclusively for those 
actually present, a right to the fallenti@? Answer: Yes, provided 
there is no question of fallentie which are made up of the distribu- 
tions destined for those actually present (Sacred Congregation of the 
Council, January 15, 1921; Acta Ap. Sedis, XIII, 198). 

(c) Can the centenary and immemorial custom-of Spain be upheld 
of sharing in the daily revenue of a benefice, though the beneficiary 
is present in choir only at one or two Canonical Hours within a nat- 
ural or liturgical day? Answer: No. 

Must Canon 2381 be applied also in case of a non-residence which 
is not grievously sinful, or is only materially, and not formally culpable 
and notorious? Answer: Yes, that Canon applies, provided that there 
are no other grounds for excuse, as mentioned in Canons 420-421, 
and no Papal Indult. 

After Canon 2381 came into force, may the beneficiary or canon 
who was unlawfully absent from his residence retain that part of the 
revenue of the benefice which corresponds to the private recitation 
of the divine office? Answer: He may not. 

May the holder of a residential benefice, who has neglected the 
duty of residence and who is still in possession of his benefice (though 
unlawfully absent), put aside and retain a certain portion of the rev- 
enue to be designated by the Ordinary, which is to be sufficiently large 
to provide for his maintenance? Answer: He cannot retain such 
portion. 

In consideration of the needs of the churches, may the statutes 
of a Chapter with the approval of the Ordinary rule that the part 
of the income lost by those who violate the law of residence shall be 
applied either in whole or in part to the upkeep of the churches? 
Answer: The precepts of Canons 1475 and 2381 are to be observed. 

Is the time of absence to be figured by days or by Canonical Hours, 
whenever days of illegitimate absence are required in order to con- 
stitute non-residence, and may proceedings be instituted against the 
otfender in accordance with Canons 2168-2175? Answer: The absence 
is to be computed by entire days, and the time of illegitimate absence 
is to be reckoned immediately from the time when the three months’ 
vacation, or any other legitimate vacation expires. 

Are illegitimately absent persons obliged to make restitution of 
the proportionate part of the income before a declaratory sentence to 





APPENDIX III 583 


that effect has been issued against them? Answer: Yes (Sacred Con- 
eregation of the Council, July 10, 1920; Acta Ap. Sedis, XII, 357). 

(d) In accordance with Canon 396, is the conferring of dignities 
in Chapters reserved to the Apostolic See, if no prebend or benefice, 
or emoluments, or very meager ones, are attached to the dignities? 
Answer: Yes, they are reserved (Committee, July 1, 1922; Acta Ap. 
Sedis, XIV, 406). 

(e) Is the option spoken of in Canon 396 to be considered tor- 
bidden, even where it is in vogue by special Apostolic indult? <An- 
swer: Yes, it is forbidden (Committee, October 16, 1919; Acta Ap. 
Sedis, XI, 477). 

(f) Is the prohibition of the option introduced by the Code to be 
understood to extend to dignities only, or also to all canonries? <An- 
swer: It extends to all canonries (Committee, November 24, 1920; 
Acta Ap. Sedis, XII, 573). 

(g) Option, according to Canon 396, § 2, is permitted only in 
those Chapters in which the founders of certain benefices of the Chap- 
ter have stipulated that option should prevail. These stipulations 
are called the “laws of the foundation.” The term foundation of a 
benefice is to be understood not of the erection of a benefice, which 
is at times also called a foundation (efr. Canon 1435), but of the 
endowment of the benefice by a benefactor [Sacred Congregation of ' 
the Couneil (in Causa Nicosiensi), June 5, 1923; Acta Ap. Sedis, 
XVI, 432]. 

(h) In accordance with the common law (cfr. Canon 397, n. 4), 
the dignitaries and canons, in the order of precedence, have the right 
and duty to convoke the Chapter and to preside over it. The coadjutor 
of the “przpositus” does not have the right to preside over the meet- 
ings of the Chapter, unless the statutes of the Chapter state other- 
wise [Sacred Congregation of the Couneil (in Causa Placentina), De- 
cember 11, 1920; Acta Ap. Sedis, XIV, 42]. 

(7) As the term ‘“conferre” or “collatio” in Canon 403 means free 
appointment to benefices, the right of presentation to canonries and 
other benefices of the Chapter is abolished, except where such right 
is based on the charter of the foundation of the benefice (Sacred Con- 
gregation of the Council, November 12, 1921, and June 10, 1922; 
Acta Ap. Sedis, XIV, 459). 

The right of nomination or presentation for benefices and canonries 
in cathedral and collegiate churches exists by the law of Canon 403 
solely where the charter of the foundation of a benefice grants that 
right. There is no foundation, unless a benefactor has endowed a 
benefice. If benefices are erected and endowed from the goods of 
other benefices, there is no founder properly so-called [Sacred Con- 


584 A PRACTICAL COMMENTARY 


gregation of the Council (in Causa Utinensi), February 10, 1923; 
Acta Ap. Sedis, XV, 544]. 

(j) A canon who refuses to occupy during choir duty the stall or 
seat legitimately appointed for him by the bishop, forfeits the right 
to the choral distributions (Sacred Congregation of the Council, July 
8. 1922; Acta Ap. Sedis, XV, 115). 

(k) Have the beneficiaries and mansionarii a vote in Chapter, if 
they have that right merely by the statutes of the Chapter? Answer: 
No. After the promulgation of the Code beneficiaries who are not 
canons and the mansionarii are not members of the Chapter (cfr. 
Canon 393), and have no vote, if the right to vote was granted to 
them merely by the statutes of the Chapter (Committee. November 24, 
1920; Acta Ap. Sedis, XII, 573). 

(7) In accordance with Canons 413 and 417, the hebdomadarian 
of the Chapter has the obligation to say the Conventual Mass and to 
apply it for the benefactors. If, by centenary custom or legitimate 
prescription, the dignitaries of the Chapter say the Conventual Mass 
ou certain feasts, the custom may be tolerated, so that the saying of 
the Mass and application for the benefactors devolves on the digni- 
taries (Sacred Congregation of the Council, March 13, 1920 and March 
12, 1921; Acta Ap. Sedis, XIII, 438). 

(m) In virtue of Canon 416, are the canon theologian and the 
canon penitentiary exempted from the office of deacon and subdeacon 
to the bishop celebrating solemnly? Answer: No, they are not exempt, 
and the Ceremoniale Episcoporum is to be observed (Sacred Congre- 
gation of the Council, February 14, 1920, and March 10, 1923; Acta 
Ap. Sedis, XII, 117, XV, 588). 

(7) Are the canons who have the obligation attached to their bene- 
fice to teach sacred theology and Canon Law in the seminary excused 
from the obligation of the choir, though their lectures take place 
outside the hours of choir, and are they exempt from the choir duty 
also on holydays on which there is no school and during the vacations? 
Answer: They are free from the choir duty on days on which they 
lecture, but they forfeit the daily distributions; on days on which they 
do not lecture, they are not excused (Committee, November 24, 1918; 
Archiv fiir katholisches Kirchenrecht, IC, 61). 

(0) Are canons who, in accordance with Canon 421, n. 1, teach 
theology or Canon Law with the permission of the bishop in schools 
approved by the Church, entitled to the revenue of their benefice only 
when they receive no remuneration for their teaching, or also when 
they receive a salary. Answer: They are entitled to the income of 
their benefice, even though they receive remuneration. 

Are the terms “sacred theology and Canon Law” in Canon 421, 


att ee 


a ERO Ie A yt ee 


"ann 


a me wt... 


APPENDIX III 585 


n. 1, to be strictly applied to theology and Canon Law, or may they 
be applied also to other sciences, e.g., Church history, sacred archae- 
ology, biblical languages, ete.? Answer: Those terms may be applied 
also to other sacred sciences (Committee, November 24, 1920; Acta Ap. 
Sedis, XII, 573). 

(p) The canon theologian who, at the wish of the bishop, teaches 
theology in a seminary outside the diocese, in which the seminarians 
of his own diocese are educated, is excused from choir duty, and has 
the right to the daily distributions, though he receives a salary for 
teaching in the seminary, and is not obliged to provide with his own 
means a substitute who preaches at the cathedral: church [Sacred Con- 
gregation of the Council (in Causa Rapollenst), July 9, 1921; Acta 
Ap. Sedis, XVI, 397]. 

(q) Are canons jubilarians exempted from the service of the altar 
in their turn, notwithstanding contrary custom? Answer: They are 
exempt in accordance with Canon 422 (Committee, October 16, 1919; 
Acta Ap. Sedis, XI, 477). 

(16) Concerning pastors. 

(a) Canon 459, § 3, n. 3, prescribes that the local Ordinary shall 
subject the cleric whom he judges qualified for the pastorship of a 
vacant parish to an examination before himself and the synodal 
examiners. The following questions arose as to the interpretation of 
the above precept: 

(i) Must a priest who has already been pastor of a parish undergo 
the examination as often as he obtains a: new parish, or does the 
examination made for the first parish suffice? Answer: He need not 
make a new examination, if the transfer from one parish to another 
is done at the suggestion and the request of the bishop; if, however, 
the pastor request the transfer, he is obliged to undergo a new exam- 
ination, unless the Ordinary together with the synodal examiners judge 
him qualified for the new parish. 

(ii) Must a pastor, who is removed from his parish in accordance 
with Canon 2154 and placed in charge of another parish, undergo 
the examination? Answer: No. 

(iii) Must a pastor, who is ex officio transferred from one parish 
to another in accordance with Canons 2162-2167, undergo the exam- 
ination? Answer: No. 

(iv) What shall be done if no priests whom the Ordinary judges 
qualified want to undergo the examination, which perhaps happens 
more than orce when there is question of small parishes? Answer: 
In so far as the answer to the first question does not cover the case, 
the Ordinary shall have recourse to the Sacred Congregation of the 
Council. 


586 A PRACTICAL COMMENTARY 


(v) Does the examination spoken of in Canon 996, provided it be 
conducted before the Ordinary himself and the synodal examiners, 
suffice for the appointment to the pastorship of the first parish? An- 
swer: No, unless the examination covers all those matters concerning 
which priests who desire to become pastors are to be examined. 

(vi) Does the yearly examination of junior priests (¢efr. Canon 
130) suffice for the appointment to pastorship, if they are to be made 
pastors during the time that they are liable to the yearly examination, 
provided those examinations are conducted before the bishop and the 
synodal examiners? Answer: No, it does not suffice, but in the ap- 
pointment to the pastorship those are to be preferred who, all other 
things being equal, got the higher marks in the examinations, as is stated 
in Canon 130 [Committee, November 24, 1820; Acta Ap. Sedis, XII 
574; cfr. decision of the Sacred Congregation of the Council (in 
Causa Romana et aliarum), June 21,1919; Acta Ap. Sedis, XI, 318]. 

(>) Does Canon 460 (stating that there shall be but one pastor 
in one district) apply only to parishes to be later established, or also 
to parishes erected before the promulgation of the Code? Answer: 
It applies also to parishes erected before the Code became law. 

Does the precept of Canon 460 apply also to parishes in which 
the plurality of pastors was introduced, not by custom or privilege, but 
by legitimate statute? Answer: It apples also to those parishes. 

Do the rights already acquired by the several pastors in one and 
the same district (cumulative pastors) remain to them both in spir- 
itual and temporal affairs, or are the temporal rights lost? Answer: 
The above answers decide the case, 1.¢., only one priest with parochial 
Jurisdiction can remain in one and the same district. For the appli- 
cation of Canon 460 to these special circumstances, recourse is to be 
had to the Sacred Congregation of the Council. 

Is the care of souls in a district which had several pastors to be 
committed to the one pastor who has the preéminence of honor? An- 
swer: The same as in the preceding paragraph ( Committee, July 14, 
1922; Acta Ap. Sedis, Avena) 

(c) Are the words of Canon 462, n. 7—“to conduct public proces- 
sions outside the church”—to be understood of those processions only 
which start from the parochial church, or also of processions which 
start from other churches located within the territory of a parish, 
even when these churches are not subsidiary churches of the parish, 
and have their own rector? Answer: Those words apply to all these 
churches, without prejudice, however, to the rights granted to all 
ncen-parochial churches by Canons 482 and 1291 (Committee, Novem- 
ber 12, 1922; Acta Ap. Sedis, XIV, 661). ° 

(d) The Archbishop of Breslau explains that in his archdiocese 


: 
: 
| 
: 
| 


7 
a Malet 


poy eee 


_———w 


Spas rfl es 





APPENDIX III 587 


there are three kinds of pastors: (i) in the scattered districts where 
the Catholic people are but few in number as compared to the non- 
Catholics, there are many parishes erected which are similar to those 
in missionary countries; they are not benefices properly so called, but 
stations or chapels erected for the care of souls within certain districts 
defined by territorial boundaries; (ii) in other parts of the country 
where there are parishes in the proper sense of the term, other 
churches have been erected for the benefit of parishioners who are too 
far away from the parish church, and these churches have not been 
completely separated from the parish; (iii) other churches exist which 
are of the nature of those mentioned in n. 2, but the rectors of these 
churches have the administration of the temporal goods entirely inde- 
pendently of the parish church. Are the pastors of the various kinds 
of parishes obliged to apply Mass for the people? Answer: The pas- 
tors mentioned under n. 1 are: those described under nn. 2 and 3 
are not [Sacred Congregation of the Council (in Causa Wratislaviensi), 
July 13, 1918; Acta Ap.-Sedis, XI, 46]. 

(e) Whether a priest who is temporarily in charge of several par- 
ishes is obliged to apply more than one Mass on Sundays and holydays 
for the people of the several parishes entrusted to him. Answer: He 
may apply one Mass in accordance with Canon 473 (Committee, July 
14, 1922; Acta Ap. Sedis, XIV, 528). 

(f) The pastor of the cathedral church precedes the pastor of a 
non-cathedral church, though the latter holds at the same time a dignity 
in the cathedral church [Sacred Congregation of the Council (in Causa 
Forloviensi), February 10 and June 9, 1923; Acta Ap. Sedis, XVI, 
400]. 

(17) Concerning parochial vicars. 

(a) Is a parochial administrator who has charge over several 
parishes at the time of their vacancy obliged to say one Mass only on 
Sundays and holydays for the congregations of the various parishes? 
Answer: Yes, one Mass only, in accordance with Canons 473 and 466 
(Committee, July 14, 1922; Acta Ap. Sedis, XIV, 528). 

(b) The vicarius substitutus (1.e., a priest who takes charge of a 
parish in the absence of a pastor, cfr. Canon 465) has, in virtue of 
Canon 474, full parochial powers in all things concerning the care of 
souls. In reference to the assistance at marriages by a substitute of 
a pastor, various points have been decided (cfr. Volume I, n. 343) by 
the Committee, July 14, 1922; Acta Ap. Sedis, XIV, 528; May 20, 
1923; Acta Ap. Sedis, XVI, 113). 

(c) The vicarii cooperatores (i.e. assistant priests to a pastor) 
are appointed by the bishop, but he must, in accordance with Canon 


588 A PRACTICAL COMMENTARY 


476, give a hearing to the pastor before making the appointment of 
an assistant priest, for the Sacred Congregation of the Council, No- 
vember 13, 1920, declared that, notwithstanding any eustom to the 
contrary, the Ordinary must consult the pastor (Acta Ap. Sedis, 
XIII, 43). 

(2) Assistant priests’ rights and duties are not determined by the 
common law, but must be learned from the statutes of the respective 
diocese, from the letters of appointment of the bishop, and from the 
commission given them by the pastor (Committee, May 20, 1923; Acta 
Ap. Sedis, XVI, 113). 

18. Concerning the constitutions, superiors and chapters of re- 
ligious organizations. 

(a) The Canons of the Code on religious laical organizations have 
been translated into various languages, the translations being author- 
ized but not official. Now, in some translations the text of certain 
Canons does not agree with the precepts of those Canons in the Code. 
It is asked whether some changes have been made in those matters, 
or whether one must adhere to the text of the Code and consider the 
divergence of the translation as a mistake? Answer: The Code must 
be adhered to and the translation is to be corrected (Sacred Congrega- 
tion of Religious, April 2, 1919; Acta Ap. Sedis, XI, 179). 

(6) The Rules or Norme, according to which the Sacred Con- 
gregation of Religious usually proceeds in the approval of new re- 
ligious congregations, were first published in 1901. The Sacred Con- 
gregation has revised these rules in accordance with the Code of Canon 
Law. The new Norme outline the manner of procedure by the bishop 
who wishes to establish a new religious congregation. The second 
part of the old Norme, on the government of new congregations, the 
novitiate, profession, ete., is not considered necessary any longer by 
the Sacred Congregation. It says that the writers of constitutions 
for new religious organizations should be guided by the Canons of 
the Code and by approved authors who wrote on the foundation of 
new religious organizations after the publication of the Norme of 
1901 (Sacred Congregation of Religious, March 6, 1921; Acta Ap. 
Hedis PLT Ley. 

(c) Do the convents of nuns in France and Belgium, whose vows 
were originally solemn vows but were reduced to simple vows by order 
of the Apostolic See, continue to be under the jurisdiction of the local 
Ordinaries as before the promulgation of the Code? Answer: The 
Holy See is to be requested to make those convents dependent on the 
local Ordinaries with this limitation that the bishops have no authority 
to change the rules of the ancient Orders or the constitutions of nuns 








eS Se Sa 


mat i as 


o 


APPENDIX III 589 


approved by the Holy See. The Supreme Pontiff approved the recom- 
mendation of the Sacred Congregation (Sacred Congregation of Re- 
ligious, May 22, 1919; Acta Ap. Sedis, XI, 240). 

(d) It happens at times that convents of nuns, whose vows were 
originally solemn vows but have been reduced to simple vows by the 
Apostolic See in some countries, establish new convents of the same 
order in other countries by sending there some of the nuns. From 
this condition the following questions arise: 

(1) Are the vows of the nuns in convents established in other coun- 
tries to be considered solemn or simple vows? Answer: They are 
solemn vows provided the beneplacitum of the Apostolic See was ob- 
tained for the new convents in other countries. 

(ii) Can the nuns spoken of in Canon 488, n. 7, establish new 
convents in other places without the beneplacitum of the Holy See? 
Answer: No, and the Holy See is to be requested to grant a sanatio 
for the convents already founded without the beneplacitum of the 
Holy See. ; 

(iii) Does a convent of nuns with solemn vows and Papal enclosure 
when transferred to another place continue to have Papal enclosure 
and solemn vows? Answer: Recourse is to be had in each case to the 
Apostolic See. 

(iv) What is the canonical status of a convent of nuns spoken of 
in Canon 488, n. 7, when transferred to a country where the reduction 
of solemn to simple vows does not apply? Answer: Hach case is to 
be referred to the Apostolic See. The Supreme Pontiff approved the 
Decree of the Sacred Congregation and granted the request for the 
sanatio (Saered Congregation of Religious, July 27, 1922; Acta Ap. 
Sedis, XIV, 554). 

(e) Concerning the convents of nuns in France and Belgium the 
Holy See declared: (i) the nuns of convents which profess the rules 
of religious Orders and whose vows were originally solemn vows, 
though at present they have only simple vows, are truly nuns of Papal 
Law in the sense of Canon 488, n. 7, like other nuns in the universal 
Church; (ii) their convents, however, are not subject to the superiors 
of regular orders, except by special privilege, and therefore they do 
not, in accordance with Canon 615, enjoy the privilege of exemption, 
but are subject to the jurisdiction of the local Ordinaries in those 
matters in which the Code gives the local Ordinaries jurisdiction over 
nuns; (iii) there is no objection at present, if a convent of nuns re- 
quests it, to their being permitted to make solemn vows observing 
Papal enclosure, provided they obtain the permission of the Apostolic 
See (Sacred Congregation of Religious, June 23, 1923; Acta Ap. 


Sedis, XV, 357). 


590 A PRACTICAL COMMENTARY 


(f) On the government of religious there are the following declara- 
tions: 

Have the founders (men or women) of religious congregations or 
pious societies, who live after the manner of religious, the right to 
retain for life the office of supreme superiors in the organization, 
though the constitutions limit the office of the superior to a certain 
term of years and forbid the reélection of the same persons beyond 
a certain limit? Answer: They have no right to perpetual superior- 
ship, unless they have obtained an Apostolic Indult (Sacred Congre- 
gation of Religious, February 25, 1922; Acta Ap. Sedis, XIV, 163). 

Concerning the repeated reélection of the same person to the office 
of superior general in religious organizations of women, the Sacred 
Cengregation of Religious declares that, where the constitutions fix 
the term of office (extending frequently to six years), and allow the 
reélection for another term, the Chapter needs permission from the 
Sacred Congregation of Religious to reélect superiors for a third, 
fourth, ete., term. The very fact that the constitutions decree that 
the office of the superioress general should be temporary, prove that 
reelection of the same person for more than two terms (especially 
when each term lasts six years) is against one of the essential prin- 
ciples of the constitution of these organizations. The Holy See wishes 
to impress the voters with the fact that it does not easily permit the 
holding of office by the superioress general beyond the terms fixed 
by the constitutions (Circular Letters of the Sacred Congregation of 
Religious, March 9, 1920; Acta Ap. Sedis, XII, 365). 

The Instruction of the Sacred Congregation of Religious on the 
Papal enclosure of nuns states that, since the promulgation of the 
Decree of this Congregation, June 23, 1923, on the status of the nuns 
in France and Belgium, many convents of nuns have availed them- 
selves of the permission to apply for the making of solemn vows, and 
have asked for definite information on the law of Papal enclosure to 
be observed by those convents which obtained permission to make 
solemn vows. The Sacred Congregation, therefore, sums up the former 
law on the enclosure of nuns, and modifies these laws to some extent 
to harmonize with the Code and to take account of modern conditions 
(Sacred Congregation of Religious, February 6, 1924; Acta Ap. Sedis, 
XVI, 96). 

The term “local superior” in the Code does not apply to the su- 
periors of those religious houses which are merely branches of the 
motherhouse (domus filiales), because such superiors are only dele- 
gates of the superior of the motherhouse and are removable at the 
will of that superior. The Sacred Congregation of Religious ordains 
that, in the revision of the constitutions for the purpose of conforming 








APPENDIX III 591 


them to the Code of Canon Law, each Order and congregation should 
specify which houses are to be considered merely as branches of the 
motherhouse (Sacred Congregation of Religious, February head BS via 
Acta Ap. Sedis, XVI, 95). 

Concerning the precept of Canon 505, that the local superiors 
shall not hold office for more than two terms of three years each, the 
question arose whether that law is to be applied also to the superiors 
or directors of schools, hospitals, and other charitable institutes. The 
Holy See has declared that the precept of Canon 505 applies also 
to them, if they are at the same time religious superiors having charge 
over other religious in reference to religious discipline; if they do 
not have such charge, the law does not apply to them (Committee, June 
2-3, 1918; Acta Ap. Sedis, X, 344). 

If a convent of sisters in solemn vows is under the jurisdiction 
of the regular superior, he has the right to preside at the elections 
held by the nuns (cfr. Canon 506, § 2). The local Ordinary, however, 
is to be informed of the elections to be held, and, if he desires, he may 
attend the elections together with the regular superior, and the Holy 
See declares that the local Ordinary or his delegate has then the right 
to preside at these elections (Committee, November 24, 1920; Acta Ap. 
Sedis, XII, 574). 

As to the Chapter of diocesan religious communities, the question 
arose whether the bishop of the motherhouse or the superioress general 
has the right to decide where the Chapter is to be held, if the diocesan 
congregation has houses in other dioceses. The Sacred Congregation 
of Religious declares that the Mother General has the right to de- 
termine where the Chapter is to be held, and that the right of 
presiding over the election of the Mother General and of confirming 
or rescinding the election does not pertain to the local Ordinary of 
the motherhouse, but to the local Ordinary of the place where the 
Chapter is held, in accordance with Canon 506, § 4. The Supreme 
Pontiff approved the decision of the Sacred Congregation (June 25, 
1921; Acta Ap. Sedis, XIII, 481). 

In reference to the visitation of the convents of Sisters in solemn 
vows which are under the jurisdiction of regulars, the question arose 
whether, in accordance with Canons 512, § 2, n. 1, and 513, the local 
Ordinary (besides the regular superior) has the right to visit these 
convents every five years in reference to the observance of the law of 
enclosure? Answer: Yes, he has the right according to Canon 513 
(Committee, November 24, 1920; Acta Ap. Sedis, XII, 575). 

(g) Concerning the confessors of religious, the following declara- 
tions have been issued: 

The Sacred Congregation of Religious had answered the Bishop 


592 A PRACTICAL COMMENTARY 


of Linz, July 3, 1916, that there was no obligation to appoint an 
ordinary confessor for a convent, if there are not at least six Sisters 
living at the convent. Canon 520 prescribes that a confessor should 
be appointed for every house of Sisters. The Archbishop of Prague, 
therefore, asked whether he might act on the Decree of the Sacred 
Congregation to the Bishop of Linz? Answer: The precept of Canon 
020 is to be observed (Sacred Congregation of Religious, J anuary 10, 
1920; Archiv fiir katholisches Kirchenrecht, C, 47). 

The Bishop of Osnabriick asked whether there is a strict obliga- 
tion to appoint for each convent of Sister an ordinary and an extraor- 
dinary confessor in the case of the so-called domus non-formate (i.e., 
houses in which there are less than six professed Sisters), or whether 
that obligation exists only when there are more than six professed 
Sisters in a convent? Answer: Canons 520-521 give the answer—i.e., 
those confessors must be appointed for each convent of Sisters. In 
reference to the other question proposed by the same bishop concern- 
ing the place of confession for Sisters, the declaration of the Com- 
mittee, November 24, 1920, is decisive (Committee, January 16, L924: 
Archiv fiir katholisches Kirchenrecht, CI, 61). 

Concerning the place of confession for Sisters the Holy See was 
requested to decide whether Canon 522—stating that “confession made 
in any church or public and semi-public oratory is valid and licit” 
—1is to be understood in such a manner that the confession made out- 
side those places is not only illicit but also invalid. The Committee 
answered: Canon 522 is to be understood in such a way that the 
confession made by a Sister for the peace of her conscience to any 
confessor approved by the local Ordinary for confessions of women 
is licit and valid, provided it be made in a church or a public or semi- 
public oratory, or in a place legitimately appointed for the hearing 
of confessions of women (Committee, November 24, 1920; Acta Ap. 
Sedis, XII, 575). 

The Bishop of Osnabriick proposed the following difficulty to the 
Sacred Congregation of Religious: What course of action may be 
taken by Sisters who are in the convent, and who want for the peace 
of their conscience to approach a confessor approved for the confes- 
sions of women by the local Ordinary without the knowledge of their 
superioress? Answer: Canon 522 permits, indeed, that a Sister make 
use of any occasion that presents itself to go to confession for the 
peace of her conscience to any confessor approved for the confessions 
of women by the local Ordinary, even without the knowledge of her 
superioress. That Canon, however, does not in any way impose upon 
the superioress or upon the Ordinary the duty to create such occasion 
for the Sisters—much less shall anything be changed for that purpose 


Ss 


eS ee, 


— ee 


ee ee ee ee ee ee 


—— 


aos ee 


APPENDIX III 593 


in the discipline of the enclosure or in the constitutions. Wherefore, 
the Sacred Congregation of Religious answers to the question of the 
bishop that the Sisters should await an occasion, but they may not 
without permission leave the enclosure to go to confession; they must 
pear the situation patiently, if no occasion offers them an opportunity 
to make use of the concession of Canon 522 (December 1, 1921; 
Archiv fiir katholisches Kirchenrecht, CII, 84). 

(19) Concerning the temporal goods of religious and their admin. 
istration: 

In virtue of Canon 535, n. 1, must an account of the administration 
be given by Sisters in solemn vows, who are under the jurisdiction of 
the regular superior, not only to the regular superior but also to the 
local Ordinary? Answer: To both the superior and the Ordinary (Com- 
mittee, November 24, 1920; Acta Ap. Sedis, XII, 575). 

(20) Concerning the report on the status of religious Orders and 
congregations of Papal law to the Holy See: 

The Code prescribes that the supreme superior of every monastic 
congregation and religious organization of Papal law shall make a 
report to the Holy See on the status of his respective organization 
every five years, or more frequently if the constitutions prescribe it 
(efr..Canon 510). Now, the Sacred Congregation regulates the order 
or sequence in which the various religious Orders and congregations 
are to make the report, beginning with January 1, 1923 (March 8, 
1922; Acta Ap. Sedis, XIV, 161). Cfr. Volume Tony oo: 

For the religious organizations of simple vows approved by the 
Holy See the Sacred Congregation of Religious has issued a formula 
or questionnaire upon which the superior generals of those organi- 
zations is to base their reports (March 25, 1922; Acta Ap. Sedis, 
XIV, 278). 

(21) Concerning the novitiate. 

(a) The constitutions of some religious organizations prescribe 
two years’ novitiate, and allow the superiors to employ the novices 
in various duties of the organization during the second year. The 
Sacred Congregation of Religious demands: (i) that the second year 
be truly a year of novitiate, given chiefly to the formation of the spir- 
itual life of the novices; (ii) the novices may, if the constitutions 
allow it, be employed in the work of the community, but only for the 
purpose of completing their training, and may not be employed to 
supply the want of teachers or nurses ; (iii) if the constitutions allow 
the novices to be sent outside the house of novitiate in the second year, 
this may be done for the purpose of the further training of the novices, 
but they may not be sent out to supply the want of professed re- 
ligious; (iv.) for two months prior to the making of profession, the 


594 A PRACTICAL COMMENTARY 


novices must be at the house of novitiate, and must be free from all 
employment which interferes with their immediate preparation for 
profession (November 3, 1921; Acta Ap. Sedis, XIII, 539). 

(0) Canon 542 rules that persons who have adhered to a non- 
Catholic sect cannot be validly received into the novitiate. The Holy 
See was requested to declare whether it meant converts from heresy 
ov schism, who were born in heresy or schism, or Catholics who had 
fallen away from the faith and belonged to a non-Catholic sect? An- 
swer: It means Catholics who have fallen away and joined a non- 
Catholic sect (Committee, October 16, 1919; Acta Ap. Sedis, XI, 477). 

(c) What is to be done if the religious superior or the rector of 
a seminary or college refuses to issue sworn testimonial letters as re- 
quired by Canon 545, § 1, when requested by the superior of an or- 
ganization which desires to receive the postulant? Answer: The pre- 
cept of the Code must be observed, and, if there is question of diocesan 
or of laical institutes (either colleges or seminaries), the local Ordinary 
shall proceed against the rector or superior who refuses to issue sworn 
letters with penalties, even the deprivation of office; in case of clerical 
religious organizations or religious Orders, the supreme superior shall 
proceed against the rector or superior in the same manner as the local 
Ordinary. If, nevertheless, sworn testimonials cannot be obtained, 
the matter is to be referred to the Sacred Congregation (Sacred Con- 
gregation of Religious, November 21, 1919; Acta Ap. Sedis, XII, 17). 

(a) In religious Orders and congregations of women the local Or- 
dinary must examine the candidates before their admission to the no- 
vitiate, before their profession of the first vows, and before they take 
perpetual vows (cfr. Canon 552). The bishop of a certain diocese 
explains that it had been the custom for several centuries in his diocese 
to demand a tax for this work from the religious communities, and 
he asks whether that custom may continue? Answer: No, the custom 
may not be continued (Sacred Congregation of Religious, March 20, 
1522; Acta Ap. Sedis, XIV, 352). } 

(e¢) Concerning the reckoning of the time of the year of novitiate 
(cfr. Canon 555), the Holy See was asked to decide whether the year 
is to be reckoned in accordance with Canon 34, § 3, n. 3, and whether 
that reckoning is obligatory under pain of invalidity of the profes- 
sion. Answer: Canon 34, n. 3, is to be applied, so that the first day 
(1.e., the day of reception) does not count, and the year is not com- 
pleted until after the day of the same number; this reckoning of the 
year is prescribed under pain of invalidity of the profession (Com- 
mittee, November 12, 1922; Acta Ap. Sedis, XIV, 661). 

(f) In accordance with Canon 567 and Canon 578, n. 1,. have 
novices and temporarily professed religious who die, the right to the 


a: °-,7 9 


. Pe 7 ae 


APPENDIX III 595 


same suffrages as members who die in solemn or perpetual simple 
vows, even though the constitutions ordain otherwise? Answer: Yes; 
the Orders and congregations shall in the revision of their constitu- 
ticns (prescribed by Decree of the Sacred Congregation of Religious, 
June 26, 1918) determine the suffrages, but they must be the saine 
for all, novices and professed members (Committee, October 16, 1919; 
Acta Ap. Sedis, XI, 477). 

(g) Is the Decree of the Sacred Congregation of Religious, Sep- 
tember 10, 1912, allowing the novices who become dangerously ill to 
make profession though they have not yet completed the novitiate, 
still in force, though the Code does not provide for such profession? 
Answer: Yes. The Sacred Congregation repeats the above-mentioned 
Decree, and points out that the profession is of no juridical value in 
case the novice survives the danger (Sacred Congregation of Religious, 
December 30, 1922; Acta Ap. Sedis, XV, 156). 

(rh) Canon 569 provides that the novices before profession may 
freely dispose of the use of their goods and the revenue derived from 
them, which disposition is to last for the time that they remain in vows. 
The question arose whether the constitutions may determine for what 
purpose the use and revenue of the goods of novices are to be em- 
ployed, and thus restrict the free disposition by the novices. Answer: 
The constitutions which have been approved before the promulgation 
of the Code are to be observed, though théy deprive the novices of the 
right to dispose of the use and the revenue of their goods, or restrict 
that right, or determine what is to be done concerning the use and the- 
revenue (Committee, October 16, 1919; Acta Ap. Sedis, XI, 478). 

(22) Concerning religious profession. 

(a) In some constitutions of religious congregations of papal law 
no mention is made in the formula of profession of the superioress, 
but only of the bishop or his delegate. It was asked whether in such 
cases the bishop or his delegate was the legitimate superior appointed 
by the constitutions to accept the profession in accordance with Canon 
572, n. 6? Answer: Yes, he has a legitimate mandate by the consti- 
tutions (Committee, March 1, 1921; Acta Ap. Sedis, XIII, 178). 

(b) Must lay brothers in religious Orders who had made simple 
vows before the Code became law (May 19, 1918) stay in simple vows 
for six years, and be at least thirty years of age, as was prescribed 
by decree of January 1, 1911 (Acta Ap. Sedis, III, 29), or may they, 
according to Canons 573-574, make solemn profession after three 
years’ simple vows and at the age of twenty-one? Answer: Their 
solemn profession is governed by Canons 573-574 (Sacred Congrega- 
tion of Religious, October 6, 1919; Acta Ap. Sedis, XI, 420). 

(c) In religious congregations or institutes in which the consti- 


596 A PRACTICAL COMMENTARY 


tutions prescribe annual vows after the novitiate, may men liable for 
military service be admitted to the yearly professions? Answer: Yes, 
but with the provision that the annual vows cease on the day on which 
the men who have been called to military service are actually placed 
under military discipline (Sacred Congregation of Religious, Novem- 
ber 30, 1919; Acta Ap. Sedis, eLLeto) « 

(d) In some religious organizations of simple vows the vows are 
made under this or a similar condition “for so long as I shall live 
in the congregation,” so that the professed member automatically be- 
comes released from his vows, when he either leaves of his own free 
will or is dismissed. The question arises whether, in accordance with 
Canon 574, the religious must make three years’ temporary vows, and 
whether, in the dismissal of those who made profession under the 
above condition the formalities prescribed by the Code for the dis- 
missal of religious in temporary vows (cfr. Canons 647-648) or those 
of the dismissal of perpetually professed are to be observed? Answer: 
They need not make three years’ temporary vows, and in the dismissal 
of those who have already made vows under the above condition 
Canons 646-648 are to be observed (Committee, March 1, 1921; Acta 
Ap. Sedis, XIII, 177). 

(e) With reference to the moneys accruing to the religious on ac- 
count of military service during the war, the Holy See issued the fol- 
lowing answers to inquiries: 

(1) May solemnly professed religious rightfully retain for them- 
selves any of the money which they have received or shall receive 
through military service, or are they obliged to give all of it to their 
Order? Answer: They must give all of it to their Order, 

(11) May solemnly professed religious, who by Apostolic Indult 
are rendered capable of acquiring goods after their profession, ap- 
propriate any of the money spoken of above without the consent and 
express permission of their major superior? Answer: No, they may 
not. 

(iii) Are religious in simple vows, either perpetual or temporary, 
whose constitutions exclude all further acquisition of temporal goods 
after their profession, obliged to give all the said moneys to their re- 
ligious organization? Answer: Yes, those who at the time of military 
service were bound by vows are obliged to give all moneys to their 
organization; those whose vows ceased at the time of military service 
are not obliged. 

(iv) May religious in simple vows, either perpetual or temporary, 
in any religious Order or congregation, whose constitutions do not stand 
in the way, appropriate for themselves any of the money which they 
received in pay for their military service, or are they obliged to give 


APPENDIX III 597 


to their organization after dismissal from the service whatever they 
have saved? Answer: If the men in question were bound by vows 
during the military service, they must give all to their organization; 
if their vows ceased, they can appropriate some of the money, but 
they should give their religious organization a fair compensation. 

(v) Where a life pension because of mutilation or debilitation 
suffered in the war has been given to simply professed religious, or 
to those spoken of in Canon 673, or to those whose vows or promises 
remained suspended, does this pension pertain to the respective re- 
ligious organization or society? Answer: If the religious were bound 
by vows during the military service, the pension belongs to the re- 
ligious organization; in the case of all others, it belongs to the re- 
ligious, but they are obliged to give it to their organization as long as 
they remain in it. 

(vi) Do any rewards gained by military distinctions in the war 
belong to the former soldiers, or rather to their religious organization? 
Answer: They belong to the religious organization unless the men were 
freed from the vows during the military service. 

(vii) Does the money given to each soldier on his discharge from 
the war service as a solemn manifestation of the gratitude of the pub- 
lic belong to the religious organization? Answer: Yes, it belongs to 
the religious community, except in the case of those who were freed 
from the vows during the war. 

(viii) Are religious who disposed of the money even in favor of 
third persons in violations of the above decisions, obliged to make 
restitution? Answer: They are obliged to make restitution, unless the 
religious acted with the reasonably presumed permission of his su- 
perior (Sacred Congregation of Religious, February 25, 1922; Acta 
Ap. Sedis, XIV, 196). 

(23) Concerning the obligations of religious. 

(a) Does the law of Papal enclosure, spoken of in Canons 597— 
600, apply to nuns whose vows were originally solemn, but have been 
reduced to simple vows by the Holy See in some countries? Answer: 
No, they are not under that law because of the Papal Indult which still 
remains in force (Committee, March 1, 1921; Acta Ap. Sedis, XIII, 
178). 

(b) In virtue of Canon 610, which prescribes that in all religious 
organizations of men the Conventual Mass corresponding to the Office 
of the Day is to be said daily and also wherever possible in organiza- 
tions of women, is the Conventual Mass of obligation in Orders of 
men and women with solemn vows only, or also in the religious houses 
of communities with simple vows, whose constitutions approved by the 
Holy See impose the obligation of the choir? Answer: It is of obli- 


598 A PRACTICAL COMMENTARY 


gation also in the latter religious organizations (Committee, May 20, 
1923; Acta Ap. Sedis, XVI, 113). 

(24) Concerning the privileges of religious. 

Does Canon 621 apply only to those mendicant religious who are 
Mendicants in the strict sense of the term, or also to those who in a 
wider sense are Mendicants (e.g., the Order of Friars Preachers), 
and do the Mendicants strictly so-called need the permission of the 
Ordinary. if they want to collect money for the building, decoration, 
etc., of their churches? Answer: Canon 621, § 1, applies to Mendi- 
cants strictly so-called only; as to the obtaining of the -Ordinary’s 
permission for soliciting alms, Canon 621, § 1, answers the question 
(Committee, October 16, 1919; Acta Ap. Sedis, XI, 478). 

(25) Concerning the transition to another religious organization. 

Is the vote of the Chapter on the admission to solemn or simple 
perpetual profession of a professed member of another organization 
who has obtained leave to join another organization (cfr. Canon 634) 
decisive or merely consultive? Answer: The vote is decisive (Com- 
mittee, July 14, 1922; Acta Ap. Sedis, XIV, 528) 

When a professed religious obtains permission from the Holy See 
to transfer to another religious organization, must he wear the habit of 
the new organization during the novitiate, or keep the habit of the 
first? Answer: He must wear the habit of the new organization (Sa- 
ered Congregation of Religious, May 14, 1923; Acta Ap. Sedis, XV, 
289). 

(26) Concerning egress from a religious organization. 

May a religious who obtains an indult of secularization or a dis- 
pensation from simple vows refuse to accept the indult or the dis- 
pensation, when he receives notice of them from the local superior, even 
though the Superior General has already issued the document of exe- 
eution of the rescript in accordance with Canon 56? Answer: Yes, he 
may refuse to accept either indult or dispensation, provided the su- 
periors have no grave reasons to the contrary; if they have such rea- 
sons they shall refer the matter to the Sacred Congregation (Sacred 
Congregation of Religious, August 1, 1922; Acta Ap. Sedis, XIV, 501). 

Does Canon 640 comprehend all religious who have obtained an 
indult of secularization either from the Apostolic See or from the 
local Ordinary? Answer: It comprehends all. 

Are religious who have obtained an indult of temporary seculari- 
zation (exclaustratio) obliged to adhere to the conditions stipulated 
in Canon 639? Answer: They are obliged, but the Ordinary has 
power to permit the temporarily secularized religious for special rea- 
sons to wear the religious habit (Committee, November 12, 1922; Acta 
Ap. Sedis, XIV, 662). 


SS ee Ee ee a Se 


oe eer Se Ae ee 


APPENDIX III 599 


If the dowry is not large enough to provide for the present needs 
of a Sister who leaves the community, is the religious organization 
freed from all further liability wpon returning the dowry to her, or, 
im accordance with Canon 643, § 3, is the community obliged to render 
additional aid to the Sister? Answer: The community is obliged to 
render further assistance (Sacred Congregation of Religious, March 
2, 1924; Acta Ap. Sedis, XVI, 165). 

(27) Concerning dismissal from religious organizations. 

(a) Canon 647, § 2, ordains that a religious in temporary vows, 
who has received the deeree of dismissal from his superiors, has the 
right to take recourse to the Apostolic See, and that pending such 
recourse the decree of dismissal is suspended, and has no force in the 
interval. Within what time must that recourse be taken? Answer: 
The religious has ten days from the notification of his dismissal within 
which he may take recourse (Sacred Congregation of Religious, July 
20, 1923; Acta Ap. Sedis, XV, 457). 

(b) Canon 681 prescribes that, in the dismissal of members of 
societies without vows, Canons 646-672 are to be observed. Now, 
these Canons have various precepts for the various cases of temporarily 
and perpetually professed religious. Wherefore, the question arises 
as to the application of Canon 681 which speaks of persons who have 
no vows. Answer: If the bond which binds the member of a society 
without vows is temporary, the Canons which treat of the dismissal of 
temporarily professed religious are to be applied; if the bond is 
perpetual, the Canons on the dismissal of perpetually professed re- 
ligious must be applied (Committee, March 1, 1921, Acta Ap. Sedis, 
PLT IT fy): 

(c) Whether Canons 2386, 2387, 2389, 2410, 2411, 2413 apply to 
clerical societies without vows? Answer: Yes, Canons 2386, 2387, 
2389 apply; Canon 2410 applies, if the society enjoys the privilege 
to issue dimissorial letters to its subjects; Canon 2411 applies as to 
its first part, but, as to the rest of this Canon, the constitutions of each 
society must be followed; Canon 2413 applies (Committee, June 2-3, 
1918; Acta Ap. Sedis, X, 347). 

(d) If a religious in any Order or congregation becomes insane 
during the three years of simple profession so that he cannot be ad- 
mitted to solemn or perpetual vows, may the Order or congregation 
dismiss him and send him to his family or into the world? Answer: 
No, the religious belongs to the organization in the same state as he 
was before the affliction, and the religious organization has the same 
responsibilities towards him as it had before he became insane (Sacred 
Congregation of Religious, February 5, 1925; Acta Ap. Sedis, XVII, 
107). : 


600 A PRACTICAL COMMENTARY 


(28) Concerning associations of laymen. 

Desirous to abolish certain abuses, a certain bishop asks the Holy 
See whether he can make use of the rights and means enumerated in 
Canons 707 sq., in connexion with the Society of St. Vineent de Paul 
established in his diocese. Answer: It is the desire of the Sacred 
Congregation to inform the bishop that he has, with reference to that 
society, the right and the duty of watching it, and to see that it docs 
not attempt anything against the faith and custom and to correct and 
suppress incipient abuses (Sacred Congregation of the Council, No- 
vember 13, 1920; Acta Ap. Sedis, XIII, 135). 

(29) Concerning baptism. 

(a) Does a child baptized at the request of its parents by a min- 
ister of another rite, in violation of the precept of Canon 756, belong 
to the rite in which it is baptized or to the rite-in which it should 
have been baptized in accordance with the precept of Canon 756? 
Answer: As the case is explained, the child belongs to the rite in which 
it should have been baptized (Committee, October 16, 1919; Acta Ap. 
Sedis, XI, 478). 

(b) The question was asked whether and how the blessing of the 
baptismal font is to be done in parish churches which have branched 
off from an original parish, and whether the custom of blessing the 
baptismal font once a year only, on Holy Saturday, may be tolerated ? 
Answer: The font must be blessed in those churches in the manner 
preseribed by the rubrics of the Roman Missal, and the blessing must 
take place on Holy Saturday and on the vigil of Pentecost; contrary 
custom cannot be tolerated (Sacred Congregation of the Council, June 
10, 1922; Acta Ap. Sedis, XV, 225). 

(c) Does a church, which before the promulgation of the Code en- 
joyed the legitimate right of having a baptismal font to the exclusion 
of other parish churches (of the same place), retain a cumulative right 
with the churches which by precept of Canon 774, have the right to 
a baptismal font? Answer: Canon 774 is to be understood in such 
a sense that the church which formerly had an exclusive right to all 
the baptisms of a city or town has now a cumulative right with all the 
other parish churches of the city or town, even with the newly erected 
parish churches. For the future, however, no parish church can by 
custom acquire a cumulative right of the baptismal font (i.e., the right 
to baptize persons domiciled in other parishes of the same city or town 
at the option of those who present themselves or who present children 
for baptism). That custom is condemned as a corruption of law. 
Besides, the church which has the right to baptize persons from any 
parish of a city or town, must, in accordance with Canon 778, notify 


APPENDIX III 3 601 


the pastor of the domicile of the administration of baptism (Com- 
mittee, November 12, 1922; Acta Ap. Sedis, XIV, 662). 

(d) Whether the term “illegitimates” in Canon 777 comprehends 
all illegitimate persons, even adulterous, sacrilegious and other spurious 
offspring, so that it is permissible to enter the names of their parents 
in the baptismal records? Answer: The names of the parents must 
be entered in such a manner that all occasion for defamation is avoided; 
in special cases, however, recourse should be had to the Sacred Con- 
gregation of the Council (Committee, July 14, 1922; Acta Ap. Sedis, 
XIV, 528). 

(e) Concerning Baptism in private houses the Holy See has been 
requested to decide whether it is in harmony with the law of the Code 
to give Solemn Baptism in private houses to infants who are not in 
danger of death, but cannot without danger be brought to church. The 
Sacred Congregation of the Sacraments prefaces its answer with the 
observation that every man or woman may give Private Baptism when 
there is positive danger that an infant may die before the priest can 
be had. If the priest or deacon baptizes in danger of death, Canon 
759, § 1, directs that he confer Private Baptism and employ the cere- 
monies which follow Baptism, if time permits. The rest of the cere- 
monies of Solemn Baptism are to be later on supplied in church. 

As to Baptism by the priest at a private house when there is no 
danger of death, the Sacred Congregation repeats what Canon 776 
states namely, that the bishop may in some extraordinary case permit 
Solemn Baptism in a private house. It is committed to the prudent 
judgment of the local Ordinary to decide in each individual case 
whether the particular circumstances are of such a serious nature as 
to allow an exception from the general rule that Solemn Baptism is 
not to be conferred in private houses (July 22, 1925; Acta Ap. Sedis, 
XVII, 452). A former declaration of the Sacred Congregation of 
Rites, January 17, 1914 (Acta Ap. Sedis, VI, 32), answered in the 
affirmative the question whether Baptism given at home with permis- 
sion of the local Ordinary outside the danger of death and urgent 
necessity is to be administered with all the ceremonies. The right of 
the local Ordinary to permit Baptism with all the ceremonies of 
Solemn Baptism in private houses is limited by the Code (cfr. Canon 
776) and the above declaration to permission in each individual case 
and to extraordinary circumstances. 

(30) Concerning recording of Confirmation. 

In a certain diocese it had been the custom for several centuries 
for the Canon Sacristan to make up and keep one Confirmation record 
of all the persons confirmed in the diocese. After the promulgation of 
the Code, the Ordinary of the diocese directed the Canon Sacristan to 


602 A PRACTICAL COMMENTARY 


send a copy of the Confirmation record to the various pastors. The 
Canon Sacristan objected to the decree of the Ordinary, and had 
recourse to the Holy See. Answer: The precept of Canon 798 by 
which each pastor is obliged to keep the record of Confirmation is to 
be observed; the Canon Sacristan is to be freed from his duty in 
keeping the Confirmation record [Sacred Congregation of the Council, 
(tn Causa Melphictensi), February 8, 1919; Acta Ap. Sedis, XI, 280]. 

(31) Concerning the Sacrifice of the Mass. 

(a) With reference to the Eucharistic fast, priests who have to 
say two Masses on Sundays or holydays of obligation, or one Mass 
at a very late hour, or who on account of work, long distance of 
travel, poor health, and other reasons cannot keep the fast without 
great harm to themselves, may apply to the Holy See for dispensation, 
and, if necessary, the Holy See shall grant habitual faculties to the 
bishops to give the dispensation. Even now, in more urgent cases 
where recourse to the Holy See cannot be had, the faculty is granted 
to the bishops to dispense with the law of the Eucharistic fast. 
Liquid food only shall be allowed, to the exclusion of intoxicants. 
The bishop who in an urgent case grants the dispensation, shall as 
soon as possible inform the Holy See (Holy Office, March 22, 1923; 
Acta Ap. Sedis, XV, 151). 

(6) May priests who have obtained a dispensation from the Eu- 
charistie fast take the ablution in the first Mass, if they have to say 
another Mass? Answer: Yes, they may take the ablution (Holy Office, 
May 2, 1923; Acta Ap Sedis, XV, 585). 

(c) With reference to the altar breads, the Holy See declares that 
the custom of getting fresh altar breads once only in two or three 
months is to be condemned, and the precept of the Roman Ritual (tit. 
IV, cap. 1) and of the Code (Canons 815 and 1272) is to be observed 
(Sacred Congregation of the Sacraments, December 7, 1918; Acta Ap. 
Sedis, XI, 8). 

(d) May the people who assist at Mass answer the priest in place 
of the server? Answer: What is in itself permissible is not always 
advisable, and, as confusion and disturbance may be caused to both 
priest and people by this manner of answering the priest, the common 
practice of having a server answer the priest should rather be followed. 

It was further asked, whether the people who assist at Mass may 
read with a loud voice the Secrets, Canon and the words of consecra- 
tion. Answer: That custom may not be retained because the Canon 
of the Mass should be read in a low voice by the priest, and it is not 
proper that the people read it in a loud voice (Sacred Congregation 
of Rites, August 4, 1922; Acta Ap. Sedis, XIV, 505). 

(e) Are the rubries of the missal which prescribe that the server 


APPENDIX III 605 


sound a small bell at the Sanctus and at the elevation of the Host and 
the Chalice, to be applied also to Misse Cantate, to Solemn High 
Masses and to Pontifical Masses, concerning which Masses the rubrics 
are silent as to the ringing of a bell? Answer: Yes, the bell should 
be sounded also in these Masses, and, if the custom of some churches 
differs from the general practice and the common interpretation of 
the rubrics, they should be brought into conformity with the general 
practice, unless in place of a small bell they employ another appro- 
priate signal. It is advisable also that, in accordance with the com- 
mon practice of the Church, the bell be sounded shortly before the 
Consecration to attract the attention of the people (especially of those 
who are at a distance from the altar) to the impending solemn moment 
of the Mass [Sacred Congregation of Rites (in Causa Romana), Octo- 
ber 25, 1922; Acta Ap. Sedis, XIV, 557]. 

(f) May a priest, who because of poor eyesight or other just cause 
has obtained an Indult from the Holy See to say some votive Mass 
or the daily Mass of the Dead, say three Masses on All Souls’ Day, 
using the formula of the Missa quotidiana defunctorum? Further- 
more, may the same priest say three Masses on Christmas Day, if he 
has permission to say daily the votive Mass of the Blessed Virgin 
or some other votive Mass? Answer: In both cases he may say three 
Masses (Sacred Congregation of Rites, January 26, 1920; Acta Ap. 
Sedis, XII, 122). 

(g) Concerning the time and place of Holy Mass, the Apostolic 
See was requested to declare whether the faculty of the Code in 
Canon 822, § 4, which grants to the Ordinary faculty to allow the 
celebration of Holy Mass in private houses in some individual and 
extraordinary case, is to be interpreted in a restrictive sense. Answer: 
Yes (Committee, October 19, 1919; Acta Ap. Sedis, XI, 478). 

May Canon 822, which grants faculty to the local Ordinary to 
allow the celebration of Holy Mass outside churches and chapels 
destined for the celebration of the divine mysteries, be interpreted in 
such a sense that the Ordinary has faculty to allow the saying of 
Mass outside the proper places also on the occasion of a profane cele- 
bration and political gatherings? Answer: No, he cannot (Sacred 
Congregation of the Sacraments, July 26, 1924; Acta Ap. Sedis, XVI, 
th) 

(32) Concerning Mass stipends. 

(a) If the local Ordinary has obtained an Indult from the Holy 
See by which his priests may take a stipend for the second Mass on 
Sundays and holydays of obligation, or an Indult by which the pastors 
are released from the obligation of applying the Mass for the people, 


604 A PRACTICAL COMMENTARY 


may he oblige the priests to apply the bination Mass or the Mass for 
the people in favor of a pious cause? Answer: Yes, he may. 

In that case, may the bishop demand only the amount of the stipend 
as fixed by the law of the diocese and leave the excess to the priests? 
Answer: If the stipend has been legitimately fixed, the entire stipend 
must be given to the pious cause, but the local Ordinary has the faculty 
to assign a certain portion of the stipend to the priests for reason 
of the inconvenience and labor. If the offering for the Mass has 
not been fixed by law (eg., if a certain number of Masses are to 
be said by the holder of a benefice, in which case there is no 
fixed stipend for each Mass), the ordinary stipend of the diocese 
is to be given to the pious cause, and the Ordinary may allow 
the priest to retain a portion of the stipend for reason of the in- 
convenience and labor [Sacred Congregation of the Council (in 
causa Viglevanensi), May 8, 1920; Acta Ap. Sedis, XII, 536). In 
another case the same Sacred Congregation ruled that, if the stipend 
for the bination Mass is larger than the ordinary stipend and the 
excess 1s given to the priest for personal reasons or because of unusual 
labor and inconvenience attached to saying the Mass (e.g., a very late 
hour, a distant place), the excess beyond the ordinary stipend need 
not be given to the pious cause (November 10, 1917; Acta Ap. Sedis, 
A; '368), 

(0) In a certain diocese it was the custom for the pastor to pay 
the assistants a fixed sum of money each month, and for the assistants 
to apply Mass for the intention of the pastor, who kept the stipends. 
One half of the payments was considered to be for the work of the 
assistants, the other half for the Masses which they had said. The 
Sacred Congregation of the Council declares that the custom may be 
tolerated, but the Ordinary of the diocese (who was at that time an 
Apostolic administrator) should rather try to introduce the diocesan 
statute by which the assistants receive a certain salary, to be supple- 
mented by Mass stipends which should be given to them entire [Sacred 
Congregation of the Council (in Causa Montisvidei et aliarum), Janu- 
ary 10, 1920; Acta Ap. Sedis, XII, 70]. 

(c) Is it permissible, with the consent of the persons who make 
the offerings, to combine two or more intentions for High Masses, so 
that one is sung for the combined intentions in the local church, and 
the others are celebrated elsewhere for the combined intentions? Fur- 
thermore, is it permissible, with the consent of those who make the 
offerings, to combine two or more intentions for High Masses so that 
one only is said with greater solemnity for the combined intentions, 
provided that only the ordinary stipend of the diocese is taken, and 


APPENDIX III 605 


the rest of the offerings is given to charities? Answer: The Sacred 
Congregation desires the Ordinary to abolish these practices prudently. 
In accordance with Canon 836, the people are to be informed by 
public notice posted in a conspicuous place that not all the High 
Masses requested can be said in the parish church because of the 
great number of Masses ordered, but that they will be said in other 
churehes (Sacred Congregation of the Council, July 9, 1921; Acta Ap. 
Sedis, XIII, 501). 

(d) The Archbishop of Montevideo explains that, in his arch- 
diocese, novena Masses and Gregorian Masses are celebrated with cer- 
tain exterior solemnities and a larger stipend than the usual is offered 
for these Masses. Now, if the pastor has these Masses said by other 
priests, may part of the stipend be retained by the pastor for his 
church, because the pastor has considerable trouble in finding priests 
to say the Masses, has the responsibility for them, and has the work 
of arranging the more solemn celebration, and besides the Gregorian 
Masses at times take the place of the funeral Masses? Answer: As 
the matter is explained, no part of the stipend can be retained, but 
the Sacred Congregation wishes to inform the archbishop that, in the 
ease of Masses which are said with exterior solemnity and Masses 
which take the place of funeral Masses, he should decree a moderate 
tax for the benefit of the pastor, which is not to be taken from the 
stipend but paid in addition to the stipend, and those who make the 
offerings are to be instructed concerning this matter (Sacred Congre- 
gation of the Council, April 16, 1921; Acta Ap. Sedis, XIII, 532). 

(33) Concerning the reception of Holy Communion. 

(a) Whether the use of reason necessary for the reception of 
Holy Communion must be such that a person is capable of committing 
mortal sin, or whether the use of reason sufficient to commit venial 
sin suffices for admission to Holy Communion? Answer: Canon 854, 
§§ 2-3, indicates the use of reason sufficient for admission to Holy 
Communion, and Canon 906 indicates the use of reason sufficient to 
subject a person to the precept of annual confession (Committee, 
February 24, 1920; Archiv fiir katholisches Kirchenrecht, CI, 68). 

(b) Are children who are not yet seven years of age, but who 
because of their sufficiently developed understanding are admitted to 
first Holy Communion, subject to the two precepts of annual confes- 
sion and Holy Communion? Answer: They are subject to both laws 
(Committee, January 3, 1918; Archw fur katholisches Kirchenrecht, 
IC, 62). 

(c) A woman who lived in public concubinage with one of her 
relations had been absolved by a missionary and been permitted to go 


606 A PRACTICAL COMMENTARY 


to Holy Communion. The pastor objected to the action of the mis- 
sionary, and referred the case to the local Ordinary. The latter 
decreed that the woman shall not be admitted to Holy Communion, 
until she has separated from the man with whom she lived in public 
concubinage, and has made reparation for the scandal, as prescribed 
by Canon 855. The missionary referred the case to the Holy See, 
asking whether the Ordinary had the right to insist on his decree in 
case the separation could not take place without great difficulty, and 
the parties had promised to abstain from sinful relations. He sug- 
gests that the reparation of scandal is possible by other means than 
separation (e.g., frequent Communion for a year), and desires to 
know what the missionaries are to do under similar circumstances. 
Answer: They must obey the decree of the Ordinary (Sacred Congre- 
gation of the Council, November 18, 1922; Archiv fiir katholisches 
Kirchenrecht, CIII, 162). 

(d) In virtue of Canon 867, § 4, may Holy Communion be dis- 
tributed without an Apostolic indult in the Midnight Mass on Christ- 
mas day in parochial and conventual churches, whenever there is in 
the judgment of the Ordinary a reasonable cause for so doing? An- 
swer: Yes (Committee, 1920; Archiv fiir katholisches Kirchenrecht, 
CIII, 170). 

(34) Concerning the minister of the Sacrament of Penance. 

(a4) May pastors, parochial vicars and other priests delegated for 
a universality of cases delegate jurisdiction for confession to other 
priests, or may they at least extend the jurisdiction of ‘priests al- 
ready approved beyond the place and persons for which they had 
faculty to hear confessions? Answer: No, they cannot do so without 
a special faculty or mandate from the local Ordinary (Committee, 
October 16, 1919; Acta Ap. Sedis, XI, 477). 

(b) Whether the adverb “obiter” in Canon 883, § 2, is to be under- 
stood in such a sense that the priest (who, in accordance with the 
first paragraph of the same Canon, has faculty to hear confession 
during an ocean trip) may, whenever the boat stays in a port, go 
ashore and there in a church or chapel hear the confessions of those 
who present themselves and absolve them validly and licitly, even from 
cases reserved to the local Ordinary? For how long may he do so— 
one or two or three days, if the boat stops that long? Furthermore, 
may the traveling priest hear confession for one, two or three days, 
if he comes to a port where he has to change boats? Finally, may 
the priest hear confessions for more than three days? Answer: He 
may hear confession in the port for three days, and it is immaterial 
whether one’s boat stops on its voyage or whether one has to change 


ee.’ r. 


APPENDIX III 607 


boats; he may not hear confessions for longer than three days, if the 
local Ordinary can be easily reached (Committee, May 20, 1923; Acta 
Ap. Sedis, XVI, 113). 

(35) Concerning the reservation of sins. 

Whether strangers (peregrini) are, in accordance with Canon 893, 
bound by the reservations of the place where they stay? Answer: 
They are bound (Committee, November 24, 1920; Acta Ap. Sedis, 
XII, 575). 

(36) Concerning the place for hearing of confessions. 

Does the precept of Canon 909 (which ordains that there must be 
between the confessor and the penitent a fixed grating with small 
perforations) determine the proper manner of hearing confessions of 
women only, or also of all penitents generally in churches and public 
oratories? Answer: It is the proper manner for all confessions, with- 
out prejudice, however, to the permission granted by Canon 910, that 
the confessions of men may be heard also in private houses (Commit- 
tee, November 24, 1920; Acta Ap. Sedis, XII, 576). 

(37) Concerning indulgences. 

(a) When a feast to which an indulgence is attached is legiti- 
mately transferred, but only temporarily and without solemnity and 
external celebration, the questions arise: (i) whether the indulgence 
ceases or remains attached to the day, and (ii) if it remains attached 
to the day, whether it remains thus attached if the feast is trans- 
ferred because it falls on Good Friday? Answer: The indulgence 
remains attached to the day, even if the feast is transferred on account 
of falling on Good Friday (Sacred Penitentiary, February 18, 1921; 
Acta Ap. Sedis, XIII, 165). 

(b) Does the concession of the privileged altar for the dying per- 
severe in view of the law of Canon 930? If so, how is that plenary in- 
dulgence to be understood, and must the priest who says Holy Mass 
for several persons who are dying specify to which he wishes the 
indulgence to be applied? Answer: The Indult perseveres; the in- 
dulgence is to be understood as applied to the sick persons before 
their death and after the manner of an absolution, and the priest need 
not single out one person, if he says Mass for several dying persons 
(Holy Office, November 9, 1922; Archiv fur katholisches Kirchenrecht, 
GULL): 

(c) Concerning the chanting of the Litanies of the Blessed V irgin 
and the gaining of the indulgences attached to them, the Holy See 
was asked whether the practice could be continued to chant the Kyrie 
eleison once, three invocations with one Ora pro nobis, and one Agnus 
Dei? Answer: In view of Canon 934, the faithful cannot gain the 
indulgences by such a manner of chanting the Litanies, and the Holy 


608 A PRACTICAL COMMENTARY 


Father urges the Ordinaries to abolish that manner of chanting the 
Litanies (Sacred Penitentiary, July 21, 1919 3 Acta Ap. Sedis, XII, 18). 
It was further asked whether the choir may chant three invocations 
with their respective Ora pro nobis, and the people the fourth invo- 
cation with the Ora pro nobis. Answer: Yes (Sacred Congregation 
of Rites, October 15, 1920; Acta Ap. Sedis, XII, 548). Furthermore, 
it was asked whether the first invocations to the Blessed Trinity may 
be chanted in such a manner that the priest sings Kyrie eleison, Christe 
eleison, and the people repeat the same invocations and then the 
priest continues with Christe audi nos, Christe exaudi nos, and the 
people repeat the same; whether the Agnus Dei may be chanted 
once, and after it Parce nobis Domine, Exaudi nos Domine, 
Miserere nobis? Answer: No, the entire order of the litanies must be 
observed from the beginning to the end for the purpose of gaining 
the indulgences (Sacred Congregation of Rites, November LO SeLO 2 ie 
Acta Ap. Sedis, XIII, 566). 

(c) In the recitation of the Holy Rosary, may the custom be ob- 
served by which after the first part of the Hail Mary the respective » 
mystery is added—e.g., “and blessed is the fruit of thy womb, Jesus, 
who sweat blood for us’? Answer: No (Sacred Penitentiary, July 
27, 1920). After this answer of the Sacred Penitentiary several 
bishops of Germany and Switzerland explained to the Holy See that 
for many centuries it had been the custom of their people to recite 
the Holy Rosary thus, and that Pope Pius IX, in the year 1859, had 
approved of this manner of saying the Rosary. The Sacred Peni- 
tentiary answered: Canon 943 contains the general law which in no 
wise revokes the concession of Pope Pius IX, and the Holy Father 
should be requested to extend the Indult in favor of all persons in any 
part of the world who are accustomed to recite the Rosary in that 
manner. The Holy Father approved of the declaration of the Sacred 
Penitentiary, and extended the indult as requested (Sacred Peniten- 
tiary, January 22, 1921; Acta Ap. Sedis, XIII, 163). 

(38) Of the minister of sacred ordination. 

(a) In former times some ecclesiastical colleges or seminaries had 
obtained the privilege to ordain their students without dimissorial 
letters of the Ordinaries of these students, so that the consent of the 
Superiors of those colleges or seminaries, or the permission of the 
Cardinal Protector of the college and the consent of the rector, suf- 
ficed for admission of the students to orders. The Sacred Consistorial 
Congregation declares that the above privilege must cease, and the com- 
mon law be observed, because the reasons for which the privilege was 
granted have ceased to exist. Nevertheless, the rights of the Sacred 
Congregation of the Propaganda granted to it by Pope Urban VIII 


APPENDIX III | 609 


by Brief of May 18, 1638, and of other missionary seminaries or 
colleges dependent on the Sacred Congregation of the Propaganda, 
remain intact (Sacred Consistorial Congregation, November 6, 1920; 
Acta Ap. Sedis, XIII, 259). 

(b) The Archbishop of Armagh (Ireland) proposed the follow- 
ing doubts: (i) Who is the proper bishop for ordination of those 
candidates who have no domicile (cfr. Canon 956)? (ii) Is a man 
who is ordained by his proper bishop for the service of another 
diocese incardinated into that other diocese in virtue of Canon 111, 
§ 2, or into the diocese of his proper bishop? (ii) If he 1s not in- 
cardinated into the other diocese by the ordination, how is he to be 
incardinated? Answer: As the first doubt is explained, the bishop of 
the place where the ordination takes place is the proper bishop, pro- 
vided the candidate has previously acquired a domicile with the oath 
spoken of in Canon 956; as to the second doubt, the candidate is in- 
cardinated in the other diocese for whose service he is ordained; the 
third doubt is disposed of by the answer to the second (Committee, 
August 3, 1919; Archiv fiir katholisches Kirchenrecht, CII, 169). 

(c) Canon 976 rules that the priesthood shall not be conferred 
until after the first semester of the fourth year of theology. In some 
religious communities it has been customary to ordain the men atter 
three years of theology, their studies being completed in the year after 
their ordination to the priesthood. Now, if a dispensation is granted 
by the Holy See to ordain the men after three years of theology, it 
is granted under condition only that the newly ordained priests com- 
plete the fourth year of theology, and that they are not employed in 
the care of souls, in preaching and the hearing of confessions, or in 
any work outside the religious community which would interfere with 
their studies. The superiors have a grave obligation of conscience to 
see that these conditions are complied with, and they apply to all 
dispensations—no matter in what form they were issued—granted 
after the promulgation of the Code (Sacred Congregation of Religious, 
October 27, 1923; Acta Ap. Sedis, XV, 549). 

(d) With reference to irregularities and other impediments of 
ordination, the following decisions have been made: 

A bishop asked for a dispensation from the irregularity of bodily 
defect of a young cleric who during the World War had lost his entire 
right hand. The Sacred Congregation of the Sacraments first sub- 
mitted the case to the Holy Office, and then answered the bishop that 
the cleric should get an artificial hand, a doctor should testify as to 
what the elerie is able to do with the artificial hand, and the master 
of ceremonies should subject him to tests in the exercise of the cere- 
monies, and report the results. After this, the case should again be 


610 A PRACTICAL COMMENTARY 


submitted to the Sacred Congregation of the Sacraments (July 1, 
1918; Acta Ap. Sedis, XIII, 436). 

In accordance with Canon 987, is a man whose father or mother 
is a non-Catholic, and whose other parent is Catholic, to be num- 
bered among those impeded from the reception of orders, and does 
the impediment exist even though the mixed marriage was properly 
contracted, the promises having been made and the dispensation 
granted? Answer: Yes, the impediment exists (Committee, October 
16, 1919; Acta Ap. Sedis, XI, 478). 

Does the term “filii” in Canon 987, n. 1, imply only the descendants 
in the first degree? Answer: Yes (Committee, July 14, 1922; Acta 
Ap. Sedis, XIV, 528). 

Is Canon 987, n. 5, to be understood in such a manner that the 
impediment of ordination exists if a man might be called to military 
service, but has not yet been called either because he is too young, or 
because after the physical examination he was declared temporarily 
disqualified for service? Answer: Yes, the impediment exists, and the 
men may not receive the tonsure or any orders before they have been 
definitely discharged as disqualified (Committee, June 2-3, 1918; Acta 
Ap. Sedis, X, 344). 

(39) Concerning betrothal. 

When a party claims his right from valid espousals against a 
party who is about to marry another, must the marriage be postponed 
until the question of a just cause for the breaking of the betrothal 
and of damages, if any are due, is settled? Answer: No, the action 
concerning a just cause for the dissolution of the betrothal is no longer 
admitted; the action for reparation of damages does not suspend 
‘he celebration of marriage. Furthermore, the Holy See was requested 
to decide whether the action for the reparation of damages spoken of 
in Canon 1017 pertains to the ecclesiastical forum or to the civil 
courts? Answer: The action is one of mixed forum (Committee, 
June 2-3, 1918; Acta Ap. Sedis, X, 345). 

(40) Concerning the knowledge of Christian doctrine before mar- 
riage; publication of the banns; free state. 

(a) Should the pastor refuse to marry, or delay the marriage, if 
either the bride or groom is found ignorant of Christian doctrine? 
Answer: The pastor shall observe the precept of Canon 1020, and, in 
doing what the Code demands, he shall teach the ignorant couple at 
least the elementary principles of Christian doctrine; if they refuse 
the instruction, he may not, in accordance with Canon 1066, refuse to 
assist at their marriage (Committee, June 2-3, 1918; Acta Ap. Sedis, 
X, 345). 

(>) If a party after attaining the age of puberty has lived for 


~ 


APPENDIX III 611 


more than six months in distant and not easily accessible places, so 
that a longer time is required to get the regular attestation on the free 
state of the party and the celebration of marriage is urgent, the ques- 
tion arises whether the oath of the party and two witnesses—or, if 
two cannot be had, of one person—who lived with him in those places 
is sufficient certification of his free state. Answer: The matter is com- 
mitted to the prudent judgment of the Ordinary, who may, in ac- 
cordance with Canon 1023, § 2, prescribe other proofs, including the 
supplementary oath (Committee, June 2-3, 1918; Acta Ap. Sedis, 
X, 345). 

(c) May the Ordinary by a general order prescribe that the pastors 
demand of all persons to be married, spoken of in the second sentence 
of Canon 1023, the oath on their free state without the necessity in 
each individual case of having recourse to the Ordinary? Answer: 
The precept of the Code is to be observed (Sacred Congregation of 
the Sacraments, February 6, 1920; Archiv ftir katholisches Kirchen- 
recht, C, 28). 

(d) With reference to the investigation about the free state of the 
parties, the Sacred Congregation of the Sacraments states that many 
local Ordinaries have complained that the pastors, especially in dis- 
tant countries to which workingmen emigrate from Europe, have not 
observed the rules of Canon Law concerning the investigation whether 
the parties are free to marry, and have neglected to send notice of the 
marriages contracted to the parishes in Europe where those people 
were baptized. Owing to this carelessness, people have been able to 
deceive the pastors, and get married again while their first spouse 
is still living in Europe. The Sacred Congregation of the Sacraments 
had issued an Instruction on this matter to the Ordinaries, March 6, 
1911 (Acta Ap. Sedis, III, 102), but lest anyone argue that the Code 
has revoked the said Instruction, the Instruction together with the 
references to the Code is again issued to the Ordinaries. 

(i) The Ordinaries must remind the pastors that it is not lawful 
to assist at a marriage—not even under the pretext or with the inten- 
tion of keeping the people from living in concubinage or from con- 
tracting a so-called civil marriage—unless they have legally established 
the fact that the parties are free to marry, observing in that investi- 
gation the precepts of Canons 1020 and 1097, nn. 1-3; and the 
pastors are to be admonished not to neglect the precept of Canon 
1021 concerning the sending of notice of the marriage contracted to 
the parish where the parties were baptized. 

(ii) The pastor who assists at the marriage (cfr. Canon 1103, § 2) 
must send the notice to the parish of baptism without delay, and that 
notice must contain the full names of the parties and their parents, 


612 A PRACTICAL COMMENTARY 


the age of the parties, the place and date of marriage, the full names 
of the witnesses, the full name of the pastor, and the seal of the parish. 
The parish, diocese and place where the parties were baptized must be 
accurately indicated in the notice. It should be sent by registered 
mail. 

(111) The pastor should send the letters of inquiry concerning the 
free state of the parties and the notice of the marriage to the place 
of baptism through the chancery office of his own Ordinary. 

(iv) The marriage of workingmen who have come recently from 
distant countries may not, as a rule, take place without consulting the 
local Ordinary, for they are either vagi (i.e., without domicile or 
quasi-domicile) or, if they are not vagi, are not sufficiently known, so 
that in many eases there is not sufficient certainty of the absence of 
impediments to their marriage. In both cases the Code demands that 
the matter be referred to the Ordinary (cfr. Canons 1032, 1031, § 1, 
1023). The Sacred Congregation strictly forbids the pastors to assist 
at these marriages without consulting the local Ordinary, except in a 
case of necessity or rather in danger of death. 

(v) If, in spite of all precaution, the pastor of the place of 
baptism finds that a party married again while the first spouse was 
still living, he shall at once inform the pastor who married them 
through the chancery office of the Ordinary. 

(vi) The Ordinaries must zealously guard that these precepts are 
faithfully observed, and proceed even with canonical penalties, if 
necessary, against the violators (Sacred Congregation of the Sacra- 
ments, July 4, 1921; Acta Ap. Sedis, XIII, 348). 

(41) Concerning impediments of marriage. 

(a) In the cases spoken of in Canons 1044-1045, is one obliged to 
make use of telephone or telegraph to communicate with the local 
Ordinary, if time does not permit one to go or write to the Ordinary? 
Answer: If telephone or telegraph are the only means by which the 
Ordinary can be approached, one is not obliged to use these means, 
and can make use of the faculties granted in the said Canons (Com- 
mittee, November 12, 1922; Acta Ap. Sedis, XIV, 662). 

(6) Is the clause of Canon 1045—“whenever the impediment is 
detected when all things are ready for the marriage”—to be under- 
stood in such a sense that the impediment must have been entirely 
unknown previously, and becomes known only at that moment; or is it 
to be understood in the sense that, though it was known before, it 
came to the knowledge of the pastor or the Ordinary only at that time? 
Answer: It means that knowledge came to the pastor or the Ordinary 
at the time when everything was ready for the marriage (Committee, 
March 1, 1921; Acta Ap. Sedis, XIII, 178). 





Sr 


APPENDIX III 613 


(c) May a widow be admitted to marriage before the Church, 
without marriage before the State, if by the civil marriage the widow 
would lose the military pension? Answer: The practice of the Sa- 
ered Congregation is not to be departed from; wherefore, the loss of 
the pension is not a sufficient reason to permit the marriage before 
the Church without the civil ceremony (obligatory in Italy). If other 
circumstances are present, recourse is to be had in each case to the 
Holy See (Sacred Congregation of the Sacraments, duly 2, 1917; 
Archiv fiir katholisches Kirchenrecht, CIII, 158). 

(d) Proof of death of spouse by presumption was admitted by the 
Holy See in a case in which the husband had, with the consent of 
his wife, gone from Spain to South America in 1902 or 1903. For 
nearly two years after arriving in the new country, he repeatedly 
sent letters to his wife and relations. Suddenly, about December, 
1905, all communications ceased, and nothing further was heard of 
him. As the wife desired to marry again, she asked the Holy See 
for the declaration of the death of her first husband. The Holy See 
allowed her to marry again for the following reasons: (1) the long 
time of absence during which no news had come from the husband 
to the wife or relations; (2) the good character of the man supposed 
to be dead; (3) his love for the wife and his daughter; (4) careful 
investigations instituted concerning him; (5) the rumor of death (Sa- 
ered Congregation of the Sacraments, November 18, 1920; Acta Ap. 
Sedis, XIV, 96). 

(ec) What is to be done if illicit and secret intercourse preceded 
the birth of the woman which a man wants to marry, so that there 
may be doubt as to whether she is his daughter or his sister? Answer: 


Canon 1076, § 3, gives the answer, namely that marriage may not be 


allowed in the case (Committee, June 2-3, 1918; Acta Ap. Sedis, x 
346). 

(42) Concerning matrimonial consent. 

(a) With reference to insanity and other mental ailments the Ro- 
man Rota (in Causa Buscoducensi) states that, inasmuch as the con- 
sent is essential to marriage, not only insane persons are to be ex- 
eluded from marriage, but also all those whose mind at the time of 
the contract is obscured to such an extent that they cannot understand 
the rights and duties of marriage. The facts of the individual case 
have to be considered, for it may happen that a person is not com- 
pletely insane, so that their faculty of reasoning is not entirely de- 
stroyed. Again, it may happen that a person is of a quiet disposi- 
tion, so that he does not easily betray his insanity, and, as he erad- 
ually grows weaker and weaker in his mind, it is difficult to determine 
whether at the time of marriage he had sufficient knowledge (January 


614 A PRACTICAL COMMENTARY 


7, 1918; Acta Ap. Sedis, X, 517). In another case, the Roman Rota 
pronounced a marriage invalid for reason of insanity, because the man 
was a monomaniac, and the partial insanity was considered sufficient 
to deprive the man of the faculty to give genuine marriage consent, 
because his insanity was in reference to marriage [Roman Rota (in 
Causa Quebecenst), December 23, 1918; Acta Ap. Sedis, XII, 338]. 

(b) With reference to force and fear which prevent free consent, 
the Roman Rota declared invalid a marriage of a young woman of 
nineteen years of age who was of a mild and timid character, and 
who was forced to contract marriage with a young man against her 
will by command and serious threats of her father (In Causa Parisiensi, 
April 4, 1919; Acta Ap. Sedis, XII, 373). 

(c) With reference to marriage consent under condition, a special 
Committee of Cardinals appointed by the Supreme Pontiff gave the 
following rules by which one may determine whether the consent is 
truly conditional: (1) if a woman has subordinated her consent to 
a condition properly so-called—for example, that she will marry the 
man only if he had not lived with a woman before; (2) if that con- 
dition was not revoked before the marriage was contracted, or had 
not ceased in any other manner; (3) if the man in his former life 
had actually lived with a woman, marriage is invalid because of the 
condition attached to the consent and the non-verification of the con- 
dition. As to the perseverance of the condition up to the moment of 
the marriage contract, the Committee declares that the revocation is 
a fact, and facts are not presumed but must be proved. The fact that 
the man had lied to her, saying that he had never lived with a woman, 
does not destroy the condition, but her consent remains subject to that 
condition, even though at the time of marriage she believes the man 
asserting that he was not guilty [In Causa Versaliensi, August 2, 1918; 
Acta Ap. Sedis, X, 388. Cfr. Roman Rota (in Causa Parisiensi), 
August 11, 1921; Acta Ap. Sedis, XIV, 512). 

(43) Concerning the form of marriage. 

(a) With reference to the substitutes of a pastor and their right 
to witness marriage contracts, the following questions were decided: 
(1) whether the vicarius substitutus spoken of in Canon 465, § 4, ean 
validly and licitly assist at marriage after the approval of the Ordi- 
nary if no limitation is attached to his appointment? Answer: Yes. 
(11) Whether the same vicar can do so even before approval by the 
Ordinary? Answer: No. (iii) Whether the same vicar who substi- 
tutes for a religious pastor can do so after the approval by the Ordi- 
nary, even before the religious superior has approved of his appoint- 
ment? Answer: Yes. (iv) Whether the vicar or priest spoken of 
in Canon 465, § 5, can do so before the approval of the Ordinary? 


APPENDIX III 615 


Answer: Yes, unless the Ordinary to whom the designation of the 
priest who is to take the pastor’s place was made known decrees other- 
wise, but until that time he has the right to witness marriages {Com- 
mittee, July 14, 1922; Acta Ap. Sedis, XIV, 527). 

(b) More doubts were submitted to the Holy See concerning the 
right of the administrator of a parish and substitutes of a pastor to 
delegate other priests to witness marriages: (i) Can the administrator 
of a vacant parish legitimately appointed (cfr. Canons 472-473) give 
permission to a specified priest to assist at a specified marriage? An- 
swer: Yes. (ii) Can the vicarius substitutus spoken of in Canon 
465, § 4, delegate another priest after the approval by the Ordinary, 
if he attached no limitations to his appointment? Answer: Yes. (ii) 
Can the substitute of a religious pastor delegate after approval by the 
Ordinary and before approval by the religious superior? Answer: 
Yes. (iv) Can the vicar or priest substituting the pastor, as described 
in Canon 465, § 5, delegate before approval of his appointment by the 
Ordinary? Answer: Yes, until the Ordinary to whom the designation 
of the priest was made known rules otherwise. (v) Can the vicarius 
adjutor appointed to a pastor who is unable to attend to the duties 
of his office, as described in Canon 475, § 1, delegate? Answer: Canon 
475, § 2, gives the answer. (vi) Can the assistant priest (vicarius 
cooperator) spoken of in Canon 476 delegate without the knowledge of 
the pastor? Answer: Canon 476, § 6, gives the answer (Committee, 
May 20, 1923; Acta Ap. Sedis, XVI, 114). 

(c) In accordance with Canon 1096, § 1, is the priest sufficiently 
specified if the pastor declares to the superior of a monastery that he 
(the pastor) delegates for assistance at a marriage to be contracted in 
the chapel dependent on his parish on the following Sunday some 
religious priest whom the superior shall in the course of the following 
days appoint to say Mass in that chapel on Sunday? Answer: No, 
that delegation is not sufficiently specific (Committee, May 20, 1923; 
Acta Ap. Sedis, XVI, 115). 

(44) Concerning the time and place of marriage. 

Canon 1108 grants faculty to the local Ordinaries to permit the 
nuptial blessing for a just reason even during Advent and Lent, pro- 
vided the laws of the Sacred Liturgy are observed. The following 
questions were submitted to the Holy See: 

(a) If the Ordinary allows the nuptial blessing on Christmas Day 
or Easter Sunday, is it permissible to add to the Oration of the Mass 
of the feast the commemoration pro sponsis, though these feasts (like 
the feasts of Epiphany, Pentecost, Trinity Sunday, Corpus Christi) 
exclude every other oration? Answer: Yes, the commemoration is to 
be added to the Oration of the Day under one conclusion. 


616 A PRACTICAL COMMENTARY 


(0) Is it permissible to say the Votive Mass pro sponsis during the 
closed seasons? Answer: If the local Ordinary permits the solemn 
nuptial blessing during these seasons, the Votive Mass pro sponsis 
may be said with the exception of Sundays, feasts of precept of the 
first and second class (actual and suppressed feasts of precept), priv- 
ileged octaves of the first and second rank, privileged ferias and the 
vigil of Christmas. 

(c) On privileged vigils occurring outside the closed season 
(namely, those of Pentecost and the Kpiphany), is it permissible to 
Say the Votive Mass pro sponsis? Answer: It is not permitted on 
either vigil [Sacred Congregation of Rites (in Causa Herbipolensi), 
June 14, 1918; Acta Ap. Sedis, X, 332]. 

(45) Concerning sacramentals. 

(a) With reference to the administration of sacramentals, is Canon 
1149 to be understood of their public application to the faithful, and 
may catechumens be admitted to the imposition of ashes and the dis- 
tribution of blessed candles and palms? Answer: Yes (Sacred Con- 
gregation of Rites, March 8, 1919; Acta Ap. Sedis, XI, 144). 

(6) Whether the custom of distributing the ashes blessed on Ash 
Wednesday on the First Sunday in Lent may be allowed by the bishop 
to continue, because few people go to church on Ash Wednesday? 
Answer: It is permissible in the case, provided the ashes were blessed 
and imposed on those present on Ash Wednesday. On the First Sun- 
day in Lent the ashes may be imposed at the end of the Mass or at 
any other time apart from the Mass (Sacred Congregation of Rites, 
June 30, 1922; Acta Ap. Sedis, XIV, 471). The Holy See was further 
requested to declare whether the said permission applies also to the 
oratories of pious unions or congregations, to rural chapels, and other 
places where services. for workmen are conducted, so that all may 
more easily have opportunity to receive the ashes? Answer: Yes, the 
matter is committed to the prudent judgment of the Ordinary in each 
case, but the Decree of June 30, 1922, concerning the blessing and 
distribution of the ashes on Ash Wednesday must be observed (Sacred 
Congregation of Rites, February 1, 1924; Acta Ap. Sedis, XVI, 
102). 

(c) By Decree of the Sacred Congregation of Rites, March 20, 
1869, it had been permitted to a certain diocese to use the candles 
blessed on the Feast of the Purification for the blessing of St. Blase, 
and employ the shorter formula “Per intercessionem B. Blasii liberet 
te Deus a malo gutturis. Amen.” Now, the Roman Ritual has a 
special form of blessing for the candles and a longer form for the bless- 
ing of the throat. May the concession to that diocese be made use 
of by other dioceses? Answer: The oration and formula of the Ro- 


a) ee 


APPENDIX III 617 


man Ritual is to be employed everywhere (Sacred Congregation of 
Rites, February 1, 1924; Acta Ap. Sedis, XVI, 102). 

(46) Concerning churches. 

(a) At the request of several local Ordinaries that the Holy See 
should issue some rule or instruction concerning the admission of flags 
into church or their benediction, the Sacred Congregation of Rites de- 
clared that, wlsen the insignia or flags do not belong to societies openly 
hostile to the Catholic religion, or to a society whose statutes are in 
themselves objectionable, or whose insignia or flags bear emblems for- 
bidden and condemned by their very nature, they may be admitted into 
church. Whenever, out of respect and deference for the Catholic 
Faith, they peacefully request that the insignia or flags be blessed, 
the blessing may be done according to the formula in the Roman 
Ritual (Sacred Congregation of Rites, December 12, 1922; Acta Ap. 
Sedis, XVI, 171). 

(6) In churches and in their erypts which are appointed for divine 
services, is it permissible to place tablets with inscriptions and the 
names of the faithful departed, whose bodies are not, and cannot in 
accordance with Canon 1205, § 2, be buried there? Answer: It is 
not allowed in accordance with former answers and the Decree of the 
Sacred Congregation of Rites, n. 733, and Canon 1450, § 1 (Sacred 
Congregation of Rites, October 20, 1922; Acta Ap. Sedis, XIV, 556). 

(47) Concerning altars. 

The Sacred Congregation of Rites published a shorter formula for 
the reconsecration of immovable altars which have lost their con- 
secration (September 9, 1920; Acta Ap. Sedis, XII, 449). 

(48) Concerning cemeteries. 

(a) Is the burial of the faithful in a subterranean church to be 
considered as burial in church in the sense of Canon 1205, §2? An- 
swer: Yes, in the case of a subterranean church which is truly and 
properly a church destined for divine worship (Committee, October 
16, 1919; Acta Ap. Sedis, XI, 478). 

(b) Is there any objection to the practice of keeping electric or 
other lamps burning over the tombs of the faithful in Catholic ceme- 
teries? Answer: There is no objection, but the light as well as the 
flowers placed at the graves should be put there, not only as a mark 
of respect for the dead and a solace for the living, but as an expres- 
sion of the faith that teaches the resurrection of the bodies of the 
dead. Moreover, the material marks of respect may not be carried 
to such an extent as to injure spiritual suffrages for the dead—namely, 
the offering of Holy Mass, of prayers and alms (Sacred Congregation 
of Rites, October 30, 1922; Acta Ap. Sedis, XIV, 598). 

(49) Concerning funerals. 


618 A PRACTICAL COMMENTARY 


(a) In accordance with Canon 1215, the bodies of the faithful 
are to be taken from the place where they die to the church where 
the funeral services are to be conducted, unless a grave reason stands 
in the way. The question arises whether the danger of offending the 
people and the clergy by the removal of the body is to be considered 
a grave reason in the sense of Canon 1215? Answer: No; contrary 
custom is to be stopped by the Ordinary (Committee, October 16, 
1919; Acta Ap. Sedis, XI, 479). 

(6) The Archbishop of Rio de J aneiro, in Brazil, explains that in 
his archdiocese the burial rites as prescribed in the Roman Ritual are 
not observed, inasmuch as the bodies of the faithful are not taken to 
church because the civil laws demand that the bodies be buried within 
twenty-four hours after death, and also because the cemeteries are by 
the law of the country at a great distance from the. parish. The pastor 
is called to the house, where the prayers over the body are said. The 
question, therefore, arises what rubrics and rules are to be observed? 
Answer: (i) The Roman Ritual and Canon 215 are to be followed 
as far as possible; (11) the family of the deceased should be informed 
that the funeral with a burial Mass can be had though the body is 
present morally only, not physically, in accordance with the rubrics and 
deerees; (iii) in extraordinary cases the Sacred Congregation of Rites 
will issue instructions (February 28, 1920 ; Acta Ap. Sedis, XII, 128). 

(c) The Cathedral Chapter of a certain diocese claimed the right 
to bury any of the faithful of the four parishes of the episcopal city 
at the petition of the heirs or the parents, and also claimed freedom 
from the obligation of paying to the proper pastor the canonical por- 
tion of the funeral offerings. The pastors had recourse to the Holy 
See and obtained the following answer: (i) In accordance with Canon 
1226, §1, one may either in person or through another to whom one 
gives a legitimate mandate choose a cemetery for one’s barial, but the 
petition of the parents or the heirs alone does not suffice; (ii) without 
prejudice to particular law, whenever a member of the faithful is not 
buried from his own parish church, the proper pastor of the deceased 
is entitled to the canonical portion of the funeral offerings with the 
exception of the case in which the body cannot be brought to the 
church of his own parish, as is stated in Canon 1236, § 1. The pastors 
have by law the right to the funeral of their own parishioners, and, 
whenever the deceased has made use of the right to select a church of 
his own choice for the funeral, the proper pastor has the right to the 
canonical portion of the funeral offerings. If another church claims 
contrary custom or legitimate prescription, or special privilege against 
the rights of the proper pastor, these must be proved (Sacred Congre- 
gation of the Council, July 9, 1921; Acta Ap. Sedis, XIII, 534). 





APPENDIX III 619 


(d) Canon 1237, § 2, prescribes that, when the first solemn funeral 
services are not held at the time of burial but within one month from 
burial, the canonical portion of the funeral offerings must be paid to 
the proper pastor also from the solemn services held within a month. 
The Holy See was requested to declare whether the canonical portion 
is due to the proper pastor from the funeral services which are held, 
not within a month from the burial, but within a month from the 
notice of death, when the deceased died in a distant country? Answer: 
Recourse is to be had to the Sacred Congregation of the Council. 

Furthermore, the Holy See was asked whether the Ordinary, for 
the purpose of preventing the abuse of delaying the funeral services 
over one month with the intention of depriving the proper pastor of 
the canonical portion, may pass a law that the public services cum 
cantu for the deceased requested by the parents are to be considered 
true funeral services from which the canonical portion must be paid 
to the proper pastor? Answer: Recourse is to be had to the Sacred 
Congregation of the Council (Committee, November 24, 1920; Acta 
AD AS eds Atl) 576); 

(e) Does the Requiem Mass, which is celebrated on the transfer of 
the body which had already been buried to its final resting place, enjoy 
the privileges of the Funeral Mass in die obitus seu depositionis, though 
funeral services had been held at the first burial of the deceased? 
Answer: No, but the Sacred Congregation extends to the proposed 
ease the privileges contained in the new rubrics of the Missal, title ITI, 
De Missis defunctorum, n. 6 (Sacred Congregation of Rites, June 16, 
1922; Acta Ap. Sedis, XIV, 393). 

(f) A soldier had died in the military hospital, and the funeral 
services were held in that place. After the war the body was brought 
to the home town of the deceased, and the widow of the soldier who 
was then living in the cathedral parish of the town wanted the funeral 
services to be conducted at the cathedral. The pastor of the parish 
where the soldier had lived when he was called to service in the war 
objected, claiming that the services should take place at his church. 
The Sacred Congregation answered that the services could be conducted 
at the cathedral. The vote of the consultors explains that the funeral 
services proper take place once only. In the present case, these ser- 
vices had been held at the first burial. In the transfer of the body 
and the services held on that occasion, Canons 1215-1218 do not apply 
[Sacred Congregation of the Council (in Causa S. Severi), January 
12, 1924; Acta Ap. Sedis, XVI, 188]. 

(50) Concerning fast and abstinence. 

(a) May one with a safe conscience follow the teaching of authors 
that, after the promulgation of the Code, one may on days on which 


620 A PRACTICAL COMMENTARY 


fast only is prescribed eat flesh meat several times a day? Answer: 
No, that teaching cannot be followed (Committee, October 20, LOLO:s 
Acta Ap. Sedis, XI, 480). 

(b) May flesh meat be eaten several times a day on days on which 
fast only is prescribed by those who are not obliged to fast for reason 
of age, work, or poor health? Answer: Yes, they may eat meat several 
times a day (Sacred Congregation of the Council, October 17, 1923); 
Archiv fiir katholisches Kirchenrecht, CIII, 163). 

(c) Does the law of abstinence cease in France on holydays of 
obligation kept by the universal Church but Suppressed in France by 
concession of the Holy See—namely, the feasts of the Circumcision, 
Epiphany, Immaculate Conception, and Sts. Peter and Paul? Answer: 
No, the abstinence does not cease (Committee, February 17. 1918 : 
Acta Ap. Sedis, X, 170). 

(d) In accordance with Canon 1252, § 4, does the fast cease when 
the holyday which has a vigil with fast falls on Monday, so that it is 
no longer obligatory to anticipate the fast on Saturday? Answer: 
Yes, the fast ceases, but Canon 1253 regarding the obligation of the 
fast by vow, by constitutions and rules of religious organizations, 
remains in force. Furthermore, it was asked whether the anticipation 
of the vigil fast on Saturday (of feast falling on Monday) applies to 
feasts during Lent, as well as to feasts during the rest of the year? 
Answer: The abolition of the anticipation of the vigil fast applies 
to the whole year (Committee, November 24, 1920; Acta Ap. Sedis, 
XII, 576). 

(e) Whether fast only or both fast and abstinence are obligatory 
when the Feast of St. Joseph, March 19, falls on a Friday or Saturday, 
and whether the law of abstinence ceases, if the feast falls on one of 
the ember days? Answer: The precept of Canon 1252, § 4, is to be 
observed—i.e., neither fast nor abstinence cease when a holyday occurs 
during Lent (Committee, November 24, 1920; Acta Ap. Sedis, XII, 
576). 

(f) If in some diocese or country the abstinence of Saturdays in 
Lent has by order of the Holy See been transferred to Wednesdays, 
strangers who are temporarily staying in that diocese or country are 
at liberty to keep the abstinence according to the special law of the 
place where they are staying, or eat meat on that day and keep the 
Saturdays kept in the place of their residence. If scandal might arise 
from such action, they must avoid giving scandal—e.g., by stating that 
as strangers they are not bound to observe the abstinence on Wednes- 
day (Sacred Congregation of the Council, February 9, 1924; Acta Ap. 
Sedis, XVI, 94). 

(51) Concerning the custody and cult of the holy Eucharist. 


APPENDIX III 621 


(a) May the Ordinary, in view of immemorial custom, give per- 
mission for the keeping of the Blessed Sacrament in churches charged 
with the care of souls, though they are not properly speaking parish 
churches, but subsidiary chapels? Answer: Yes, he may (Committee, 
May 20, 1923; Acta Ap. Sedis, XVI, 115). 

(6) Is Canon 1267 (which rules that in religious houses and pious 
institutes the Blessed Sacrament cannot be kept except in the church 
or principal oratory) to be understood in such a sense that it is for- 
bidden to keep the Blessed Sacrament in the principal oratory in 
which the community convenes for religious exercises, if there is a 
public church attached to the institute where the Blessed Sacrament 
is kept for the benefit of the public. And, if it is permitted to keep 
the Blessed Sacrament in both places, is it permissible even if the 
church ordinarily remains closed to the public? Finally, may the 
Blessed Sacrament be kept in several oratories of the same institute, 
if the various classes of members have their separate oratories—e.g., 
one for novices, another for the professed, a third one for the students 
of the academy or college—or may it be kept in one oratory only in 
an institute? Answer: The meaning of Canon 1267 is this: If the 
religious house or pious institute has a public church and uses that 
church for the ordinary daily exercises of piety, the Blessed Sacrament 
may be kept in that place only; otherwise, the Blessed Sacrament may 
be kept in the principal oratory of the religious house or pious insti- 
tute, without prejudice to the right of the church if it has any, to keep 
the Blessed Sacrament; the one oratory only is entitled to have the 
Blessed Sacrament, unless in the same building there are several dis- 
tinct and separate families so that it amounts to several religious 
houses or institutes (Committee, June 2-3, 1918; Acta Ap. Sedis, X, 
346). 

(c) Are the churches in which in virtue of Canon 1274, § 1, the 
public exposition of the Blessed Sacrament can take place without 
permission of the Ordinary on the Feast of Corpus Christi and within 
the octave at Mass and vespers, those churches only which have the 
right to keep the Blessed Sacrament? Answer: Yes, but the precept 
of Canon 1171 concerning the right of the local Ordinary to regulate 
the divine services in all non-exempt churches must be observed (Com- 
mittee, July 14, 1922; Acta Ap. Sedis, XIV, 529). 

(52) Concerning sacred processions. 

(a) The laws of the Sacred Liturgy do not forbid the holding of 
two or more processions on the same day, provided they are held at 
different hours, as was decided in the case between the Friars Minor 
and the Friars Preachers in India concerning the Corpus Christi pro- 
cession on Sunday within the octave; the bishop was to fix the hours 


622 A PRACTICAL COMMENTARY 


for the two processions. Wherefore, one confraternity may transfer 
its procession to a day on which another confraternity holds a pro- 
cession, but the transfer cannot be made without the permission of the 
local Ordinary, in accordance with Canon 1294, §1 [Sacred Roman 
Rota (in Causa Tarentina), February 3, 1922; Acta Ap. Sedis, XIV, 
295]. 

(b) Concerning the carrying of the Blessed Sacrament in proces- 
sions, the following questions were submitted to the Holy See: (1) 
Is it permissible or proper in solemn processions with the Blessed 
Sacrament, especially at the conclusion of Eucharistic Congresses, to 
carry the Blessed Sacrament on a triumphal carriage covered with a 
canopy and magnificently ornamented, drawn by horses, while a priest 
kneels besidas the monstrance to prevent it from falling? (2) Is the 
use of a carriage and horses permissible or proper when, in place of 
the Blessed Sacrament, the statute of the Blessed Virgin or the relics 
of saints are carried? (3) Is the use of horse and carriage permis- 
sible, not only for reason of extraordinary solemnity, but also when- 
ever the procession covers a long distance? (4) May an automobile 
be employed instead of horse and carriage? Answer: N 0, in reference 
to all points. The Sacred Congregation adds that, in the Eucharistic 
Congress held at Rome in 1922, no carrlage was used for carrying the 
Blessed Sacrament, and that this is in harmony with the Ceremoniale 
f’piscoporum and former Decrees (Sacred Congregation of Rites, Octo- 
ber 28, 1922; Acta Ap. Sedis, XVI, 103). 

(53) Concerning sacred vessels. 

Is it permissible to use the four chalices in Holy Mass which are de- 
scribed in the magazine Benediktinische Monatsschrift (Beuron, 1920, 
n. 3, 4), are there highly praised, and are styled by the names of Pocu- 
lum celeste, Genimina vite, Flos de Virgine, and Virga Jesse? Answer: 
The matter is to be submitted to the local Ordinary, who shall take 
care that the chalices do not diverge from the traditional forms, so 
that all danger of spilling the Sacred Species and all scandal to the 
faithful shall be avoided (Sacred Congregation of Rites, June 30, 
1922; Acta Ap. Sedis, XIV, 437). 

(54) Concerning the censureship and prohibition of books. 

Is the particle “et” in Canon 1391—“aut nisi edantur sub vigilantia 
episcoporum et cum adnotationibus, ete.”—to be interpreted as copu- 
lative or disjunctive? Answer: It is to be interpreted as copulative 
(Committee, May 20, 1923; Acta Ap. Sedis, XVI, 116). 

(55) Concerning division of parishes. 

The local Ordinaries can, in virtue of Canon 1427, $1, without 
permission from the Holy See, divide parishes or disrupt the territory 
of parishes, though accidentally by the division of the territory the 


APPENDIX III 623 


decime (certain offerings of the faithful) are divided [Sacred Con- 
gregation of the Council (in Causa Utinensi), January 14, 1922; Acta 
Ap. Sedis, XIV, 229]. 

(56) Concerning the conferring of benefices. 

(a) A certain pastor, at the invitation of his Ordinary, had re- 
signed his parish under condition of a life pension. Afterwards, the 
pastor had recourse to the Apostolic See, requesting that the resigna- 
tion be declared null and void, because contrary to Canons 1486 and 
1429. The question was proposed whether there is certainty of the 
nullity of the resignation. Answer: No. The reasons given are that, 
in accordance with Canon 1429, § 2, the Ordinary can impose on the 
parishes a pension in favor of the former pastor, provided the pension 
does not exceed one-third of the income of the parish. Canon 1486 
has reference to a condition properly so called, not to a proposition 
made by the bishop of which there is question in the case (Sacred 
Congregation of the Council, November 11, 1922; Acta Ap. Sedis, 
XV, 454). 

(6) Can the local Ordinary admit the resignation of a parish with 
the reservation of a pension for the life of the one pensioned, which 
pension is to be paid by the parish to the resigning pastor? Answer: 
Yes, provided the precept of Canon 1429, § 2, concerning the amount 
of the pension is observed (Committee, May 20, 1923; Acta Ap. Sedis, 
XVI, 116). 

(c) In accordance with Canon 1432, § 3, does the conferring of a 
benefice devolve on the Holy See if the Ordinary does not, within six 
months from the time he obtains certain knowledge of the vacancy of 
a benefice, confer the benefice, provided the delay is not caused by his 
neglect but by absolute shortage of men for the position? Answer: 
No, he does not lose the right to fill the benefice (Committee, November 
24, 1920; Acta Ap. Sedis, XII, 577). 

(d) May the bishop in the conferring of non-reserved parishes 
impose for once only a moderate tax in favor of the seminary, though 
the parish of which there is question is subject to the seminary tax 
(cfr. Canons 1355, 1356, 1441)? Answer: He shall in each instance 
have recourse to the competent Sacred Congregations (Committee, 
October 16, 1919; Acta Ap. Sedis, XI, 479). 

(57) Concerning the right of patronage. 

(a) What is the force of the verb “curent” in Canon 1451, § 1? 
Answer: It means that the local Ordinaries should try to persuade 
the patrons that, in place of the right of patronage, or at least in 
place of the right to present the holder of a benefice, they should 
accept spiritual suffrages (even perpetual ones) for themselves and 
their families, and that therefore the patrons, especially ecclesiastics, 


624 A PRACTICAL COMMENTARY 


act in a most praiseworthy manner if they act on this suggestion of 
the bishop (Committee, November 12, 1922; Acta Ap. Sedis, XIV, 
663). 

(6) The Patriarch of Venice (Italy) explained to the Holy See 
that in the Venetian province there were a number of parishes in which 
by ancient custom the people of the parish choose the pastor (electio 
seu presentatio popularis), but that all candidates were subject to 
the examinatio or concursus. After the promulgation of the Code, 
which in Canon 1452 admits the popular election or presentation only 
under condition that the people elect one of three candidates proposed 
by the bishop, some priests refused to make the concursus before their 
nomination by the bishop. The Patriarch asks whether the ancient 
practice of popular election or presentation may be permitted to con- 
tinue? Answer: Yes. The answer of the Sacred Congregation is 
based on Canon 5 which rules that centenary and immemorial eustoms 
contrary to the Code and not expressly rejected by it may be suffered 
to continue, if the local Ordinaries do not believe it wise in considera- 
tion of the circumstances to stop those customs [Sacred Congiegation 
of the Council (in causa Veronensi et aliarum), February 14, 1920; 
Acta Ap. Sedis, XII, 163]. 

(c) In accordance with Canon 1462, must parishes and other bene- 
fices subject to laical right of patronage always be conferred by con- 
cursus, so that the patron, though a layman, cannot present a cleric 
except one who has been approved in the concursus? Answer: Yes, 
if the parishes and other benefices of laical patronage are by particular 
law (e.g., by the charter of the foundation of the benefice or by evstom 
subject to the concursus), but not otherwise (Committee, November 12, 
1922; Acta Ap. Sedis, XIV, 663). 

(58) Concerning diocesan taxes. 

(a) The bishops of a certain ecclesiastical province in France, in 
accordance with Canons 1504 and 1507, submitted to the Holy See 
the schedule of taxes. They stated that the taxes or fees of the chan- 
cery office did not suffice to cover the expenditures of the chancery 
office, and that the bishops were obliged either to defray the expendi- 
tures from their own income or to find other means of covering the 
expenditures. Wherefore, the tax called cathedraticum shall be very 
useful for the purpose. The basis for this tax was to be 20 centimes 
for each parishioner, so that a pastor who had 500 souls in the parish 
paid only 100 franes for the cathedraticum, and a parish which had 
1000 souls paid 200 franes. The money is not to be collected from 
each individual parishioner, but is to be paid from the income of the 
churches and confraternities. The Holy See answered that, as the 
matter is explained, it was not expedient. In the “animadversiones” 


——————— 


APPENDIX III 625 


of the answer, it is explained that the proposed scheme did not har- 
monize with the juridical notion of the cathedraticum as described in 
Canon 1504, because the cathedraticum: (1) must be paid by all 
churches and benefices and laical confraternities; (2) must be a fixed 
sum equal for all; (3) is paid merely as a mark of subjection to the 
bishop (Sacred Congregation of the Council, March 13, 1920; Acta 
Ap. Sedis, XII, 444). 

(6) The bishops of a certain ecclesiastical province submitted the 
schedule of taxes to be charged in the entire province to the Holy 
See for the necessary recognition. In the schedule there was under 
each head a highest and a lowest fee, so that the individual Ordinaries 
might, according to the circumstances of their diocese, demand a fee 
which was between the two extremes. The Holy See answered that 
the definite approval of the proposed schedule is to be delayed. The 
bishops of the province should at a future meeting reconsider the 
matter, drop the double tax, and fix one tax only, taking into account 
the Bull of Pope Innocent, October 8, 1678, the precepts of the Code 
in Canons 1507, § 1, 1234, 1056, and the Decree of this Sacred Con- 
gregation issued June 10, 1896; in the imposition of taxes or fees 
discretion is to be used (Sacred Congregation of the Council, December 
11, 1920; Acta Ap. Sedis, XIII, 350). 

(59) Concerning contracts. 

(a) May votive offerings be alienated without the beneplacitum of 
the Holy See? Answer: No. The reasons given for the answer are 
that (i) there is an intimate connexion between those offerings and 
the objects of cult, devotion or piety (efr. Canon 1281,°8'1)5 (ii): the 
will of the donors who desire that the offerings be faithfully preserved ; 
(111) the perpetual custom and practice of the Church not to dispose 
of the votive offerings (Sacred Congregation of the Couneil, July 12, 
1919; Acta Ap. Sedis, XI, 416). 

(6) A certain bishop proposed the following questions: (i) for 
the alienation of so-called precious objects is it always necessary to 
obtain the beneplacitum of the Holy See, or may the Ordinary within 
the limits of a certain sum allow the alienation?. Answer: The matter 
shall be referred to the Committee for the Authentic Interpretation 
of the Code. (ii) Is the beneplacitum of the Holy See required for 
the alienation of any votive offerings, or may the Ordinary dispose of 
them up to a certain amount? Answer: For the alienation of all 
votive offerings the beneplacitum of the Apostolic See is required 
(there seems to be question of jewels, objects wrought in gold and 
silver and other gifts of that kind offered at miraculous pictures and 
other sacred shrines). (iii) Is the beneplacitum of the Holy See re- 


626 A PRACTICAL COMMENTARY 


quired, even when the donor of his own accord consents to the aliena- 
tion? Answer: Yes, even in that case the beneplacitum is required. 
(iv) Does the mere fact that an offering is made at an altar or a 
sacred image of itself imply that the offering was made in fulfillment 
of a vow, or must it be positively known that the offering was made 
in fulfillment of a vow? Answer: The offering is presumed to be a 
votive offering, unless the contrary will of the offerer is otherwise 
proved. (v) Has the Ordinary the right, when the administrative 
board and the Cathedral Chapter disagree, to supply the consent of 
one or the other in the matter of alienation, as well as in any other 
contract of the same nature? Answer: No, he has not the right 
(Sacred Congregation of the Council, January 14, 1922; Acta Ap. 
Sedis, XIV, 160). 

(c) Is the price spoken of in Canon 1532, § 3, the same as the 
valuation of the object by conscientious experts made in accordance 
with Canon 1530, § 1, n. 1, or does Canon 1532, § 3, refer to a higher 
price which was offered in public auction (cfr. Canon 1531, § 2)? 
Answer: The valuation of the experts only is to be considered. There- 
fore, if the experts have estimated the value of a thing to be sold 
below thirty thousand francs and in the auction a higher price is 
obtained, there is no need of obtaining the beneplacitum of the Holy 
See (Committee, November 24, 1920; Acta Ap. Sedis, XII, 577). 

(dq) Has the local Ordinary the right, in virtue of Canon 1532, 
to validate alienations of ecclesiastical goods made without the required 
permission, if the value of those goods does not exceed thirty thousand 
frances? Answer: No. In the “animadversiones” to the answer it is 
explained that the invalid act is no act, and has no juridical existence ; 
wherefore it cannot be rectified (literarily “healed,” sanari) by authori- 
ties inferior to the Roman Pontiff (Sacred Congregation of the Council, 
May 17, 1919; Acta Ap. Sedis, XI, 382). 

(e) Canon 1536, § 1, rules: “Unless the contrary is proved, it must 
be presumed that those things which are donated to rectors of churches, 
even of churches of religious, are donated to the church.” As this 
rule is not a new law, but has been taken from the Constitution of 
Pope Leo XIII, “Romanos Pontifices,” May 8, 1881, and is in harmony 
with the most universally accepted interpretation of the former common 
law, that rule of Canon 1536, § 1, is to be applied in the interpretation 
of donations also made before the promulgation of the Code [ Apostolic 
Signatura (in Causa de Manila), April 6, 1920; Acta Ap. Sedis, XII, 
252]. 

(60) Concerning pious foundations. 

(a) Laical chaplaincies which have not been accepted by the bishop 


APPENDIX III 627 


may be changed or suppressed by the founders while they are living and 
also by last will. Cfr. Canon 1544, §2 [Roman Rota, February 26, 
1921 (in Causa Bergomensi), Acta Ap. Sedis, XIII, 505]. 

(b) In accordance with Canons 1517 and 1551, can the Ordinary for 
reason of the diminution of the income reduce foundation Masses, if 
such an emergency is explicitly provided for in the charter of the 
foundation? Answer: Yes, he can (Committee, July 14, 1922; Acta 
Ap. Sedis, XIV, 529). 

(61) Concerning the competent forum. 

(a) The Bishop of Paderborn explained to the Holy See that in 
his diocese disputes between Catholics concerning the right to pews in 
church are usually taken to the civil courts. He inquires whether this 
custom can be approved or at least tolerated, especially when the liti- 
gants explicitly appeal to the civil courts from his decision given by 
way of administration? Answer? The custom cannot be tolerated, 
all the more so when there is question of suing in the civil court 
against the order of the Ordinary. Care should be taken to abolish 
the custom spoken of in the ease. Cfr. Canon 1553, § 1, n. 1 [Sacred 
Congregation of the Council (in Causa Paderbornenst), December 11, 
1920; Acta Ap. Sedis, XIII, 262]. 

(b) In accordance with Canon 1565, §1, can a party be sued 
before the Ordinary of the place where the contract was made, or is 
to be executed, though that party has left the place? Answer: No, 
he cannot be sued in that place after he has left it, but the parties 
can make a special agreement in the contract (cfr. Canon 1565, § 2) 
to be sued on the contract in a certain place, though they are away 
from that place (Committee, July 14, 1922; Acta Ap. Sedis, XIV, 
529). 

(62) Concerning the judge. 

The Archbishop of Breslau requested the Holy See to declare: 
(1) whether the custom in his diocese existing for one hundred and 
seventy years of admitting laymen experienced in law to a decisive 
vote in matrimonial and civil cases, but excluding them from criminal 
cases, can be called legitimate and may be tolerated; (2) whether in 
future these laymen can be admitted in ecclesiastical trials, excepting 
criminal trials, as auditors to draw up the cases or as assessors with 
a consultive vote in those trials which have some connection with the 
civil laws. Answer: No, in both points. In the “animadversiones” 
it is explained that laymen are to be entirely excluded from the office 
of judge in ecclesiastical trials, and the contrary custom is condemned 
as subversive to ecclesiastical discipline and not to be tolerated. The 
auditors and assessors must be taken from the synodal judges, who, in 
accordance with Canons 1575 and 1581, must be priests (Sacred Con- 


628 A PRACTICAL COMMENTARY 


gregation of the Council, December 14, 1918; Acta Ap. Sedis, XI, 
128). 

(63) Concerning the Sacred Roman Rota. 

(a) The Sacred Roman Rota is not competent to try cases which, 
though they have a residential bishop as a party to the ease, originate 
from an administrative decree or disciplinary measure of the bishop. 
As, in virtue of Canon 1601, the Roman Rota is entirely incompetent 
to try such cases, which are reserved exclusively to the Sacred Con- 
gregations, it cannot judge on the merits of those cases, nor consider 
them incidentally, and as it were accidentally. Canon 17 of the laws 
proper to the Sacred Roman Rota states that the lack of authority 
of the Rota in these eases is absolute, so that this tribunal cannot 
even incidentally consider those eases, and, if it does render a decision 
concerning them, its sentence is null and void (Sacred Roman Rota, 
April 30, 1923; Acta Ap. Sedis, XV, 296). 

(0) In accordance with Canons 1552-1601, can a judicial trial be 
instituted against the decreés, acts, or orders of Ordinaries, which have 
reference to the government or administration of his diocese—e.g., 
conferring of benefices, offices, ete., or the refusal to confer some 
benefice or office, ete.? And, if no trial can be instituted for the 
purpose of (e.g.) forcing the bishop to confer a benefice, office ete., 
can a canonical trial be instituted at the tribunal of the Sacred Roman 
Rota, in accordance with Canons 1557, §2, and 1559, §2, for the 
purpose of obtaining damages suffered through the deeree, orde1, or 
refusal of the bishop? Answer: Neither trial can be instituted. The 
matter pertains exclusively to the Sacred Congregations to pass judg- 
ment on the actions of the Ordinary in disciplinary and administrative 
matters, and also the judgment as to injury inflicted unjustly by the 
Ordinary through his measures or acts (Committee, May 22, 1923; 
Acta Ap. Sedis, XVI, 251). 

(64) Concerning the Signatura Apostolica. 

The congressus of the Signatura Apostolica has a two-fold juris- 
diction—one administrative and the other judicial. As administrative 
organ of the Holy See, it receives petitions for Papal commissions 
and prayers for other rescripts of that kind; as a judicial tribunal it 
has judicial power (efr. Chirographum Bened. XV, June 28, 1915; 
Acta Ap. Sedis, VII, 320). and can examine the judicial decrees of 
the Sacred Roman Rota, hear the parties (if it deems it necessary), or, 
if the case is sufficiently complete, examine the acts and confirm or 
reject or correct the decision of the Sacred Rota, Matters of greater 
importance must be submitted to the full tribunal of the Signatura 
Apostolica [Signatura A postolieca (% Causa Romana), November 25, 
1922; Acta Ap. Sedis, XV, 180]. 


ee. se ee 


ars ; Ts 


APPENDIX III 629 


(65) Concerning procurators in law suits and attorneys. 

Must clerics and laymen approved as attorneys for the defence in 
ecclesiastical cases tried at the Roman Curia, even the attorneys of 
the Consistorial Congregation, obtain approval from the local Ordinary, 
if they wish to practise law in the diocesan curias? Answer: Yes, 
they cannot practise without the approval of the Ordinary [Signatura 
Apostolica (in Causa Romana), June 23, 1923; Acta Ap. Sedis, XVI, 
105]. 

(66) Concerning suits on the nullity of acts. 

Canon 1683 rules that an inferior judge cannot pass judgment on 
the confirmation given by the Roman Pontiff to an act or instrument. 
unless he has first obtained a mandate from the Apostolic See. As this 
Canon does not constitute new law but merely repeats the former law, 
it must be interpreted in accordance with the accepted interpretation 
of approved authors who wrote on the former law (cfr. Canon 6, n. 2). 
The confirmation spoken of in Canon 1683 means a confirmation in 
forma specifica, not in forma communi, and that specific confirmation 
must have been issued by the Supreme Pontiff himself, not by the 
Sacred Congregations, unless the confirmation was not given by one 
of the Sacred Congregations by their ordinary power, but by authority 
specially delegated to it by the Supreme Pontiff. Finally, the letters 
of the Apostolic See are withdrawn from the judicial recognition of 
the judges in those cases only in which the letters are issued under 
clauses which invalidate the action concerning those letters [Sacred 
Roman Rota (in Causa Tranensi), January 30, 1923; Acta Ap. Sedis, 
Velen ie 

(67) Concerning judicial sentences. 

In accordance with Canons 1874, § 5, and 1894, n, 3, is a sentence 
null and void which is issued by a collegiate tribunal and subscribed 
by the presiding judge and a notary only? Answer: Yes, because all 
the judges must subscribe to the sentence (Committee, July 14, 1922; 
Acta Ap. Sedis. XIV, 529). 

(68) Concerning appeals. 

The days within which an appeal must be made are to be computed 
from the day on which legal notice of the sentence has been given to 
the parties concerned. In virtue of the Instruction of the Sacred 
Congregation of Bishops and Regulars, June 11, 1880, it was required 
that the intimation of the sentence be made by a duly qualified person. 
According to the law in force at present, the notification of the 
sentence to the parties is to be made in the manner prescribed by 
Canon 1877. A case irrevocably adjudged in the civil cases holds good 
also in the ecclesiastical court [Sacred Roman Rota (in Causa Vincen- 
tina Societatis), March 18, 1922; Acta Ap. Sedis, XIV, 652]. 


630 A PRACTICAL COMMENTARY 


(69) Concerning cases irrevocably adjudged and reinstatement into 
former right. 

The Baroness de Laeffert requested the Signatura Apostolica to 
declare null and void the sentence of the Roman Rota in her marriage 
case, or at least to grant her reinstatement into the former right. The 
Signatura Apostolica refused both petitions, the first because of the 
lack of reasons recognized in law for the declaration of nullity of the 
sentence, and the other because there was question of a marriage case, 
which never becomes irrevocably adjudged. Since the reinstatement 
in the former right is an extraordinary remedy specially against sen- 
tences which have become irrevocably adjudged, the remedy is not 
applicable in marriage cases [Signatura Apostolica (in Causa Pader- 
bornensi), May 31, 1919; Acta Ap. Sedis, XI, 295]. 

(70) Concerning the competent forum in marriage cases. 

Can a wife maliciously deserted by her husband, in accordance 
with Canon 1964, sue him in a matrimonial case before the local 
Ordinary of the place where the wife has a quasi-domicile of her own, 
distinct from that of her husband, or can she sue him only in the 
diocese where the husband has a domicile or quasi-domicile? Answer: 
She can sue him only where he has a domicile or quasi-domicile. 

Can a Catholic woman who has not been legitimately (ie., by 
authority of the Ordinary) separated from her non-Catholic husband, 
and who has a quasi-domicile of her own, sue her husband in the diocese 
of her quasi-domicile only, or also in the diocese where her husband 
has a domicile? Answer: Since the wife has a quasi-domicile of her 
own, and also participates in the domicile of her husband, she can sue 
him either in the diocese of her quasi-domicile or in the diocese of the 
domicile of her husband, which is also her own domicile in accordance 
with Canon 1964 (Committee, July 14, 1922; Acta Ap. Sedis, XIV, 
529). 

(71) Concerning appeals in marriage cases. 

(a) In accordance with Canon 1903 matrimonial cases never become 
irrevocably adjudged, but two uniform sentences in the same case 
have the effect that the case is not admitted for a further trial unless 
new and weighty arguments or documents are produced. The new 
arguments or documents must be grave, but they need not be most 
grave (gravissima), as is plain from Canon 1786, which distinguishes 
between grave and most grave reasons. It is not necessary that the 
reasons and documents are so evident as to entitle a person to rein- 
statement to the former right in the face of an irrevocably adjudged 
sentence, Cfr. Canon 1905, § 2, n. 2. [Sacred Roman Rota (in Causa 
Diecesis Z), May 19, 1921; Acta Ap. Sedis, XIII, 546]. 

(b) The rule which ordains that a sentence concerning the bond of 


APPENDIX III 631 


marriage or the state of marriage does not become irrevocably ad- 
judged (cfr. Canon 1903), does not apply when the bond of marriage 
has already been dissolved by death of one of the married parties. 
The reason is that the Code in this matter merely restates the former 
law, and therefore the Code must be interpreted according to the ac- 
cepted interpretation of commentators on the former law (cfr. Canon 
6). Now, the authors unanimously teach that a sentence in matrimonial 
cases cannot become irrevocably adjudged in those cases in which 
obedience to the sentence would foster sin which could not be pre- 
vented by the consent of the parties [Sacred Roman Rota (in Causa 
A gypti), June 20, 1922; Acta Ap. Sedis, XIV, 600]. 

(72) Concerning marriage cases exempted from the formalities of 
canonical trials. 

Can the Ordinary with the omission of the formalities demanded by 
the Apostolic Constitution “Dei miseratione” of Pope Benedict XIV, 
November 3, 1741, pronounce a marriage null and void after con- 
sultation with the defensor vinculi matrimonialis without the necessity 
of a second sentence in the following cases: 

(a) If two Catholes contracted a civil marriage in a place subject 
to the “Tametsi”’ of the Council of Trent, or in any place after the 
“Ne temere” decree, and then obtained a civil divorce and desired 
to marry again in the Church, or having married again outside the 
Church ask that their marriage be validated? 

(6) If a Catholic has married a non-Catholic in a non-Catholic 
church, has obtained a civil divorce, and then desires to marry a 
Catholic in the Catholic Church; 

(c) If apostates from the Catholic faith have married outside the 
Church, either before a civil magistrate or in a non-Catholic church, 
have obtained a civil divorcee, and then return to the Catholic Church 
and desire to marry a Catholic in the Catholic Church? Answer: The 
above cases do not require any judicial procedure nor the intervention 
of the defensor vinculi, but are to be decided by the Ordinary himself 
or by the pastor in consultation with the Ordinary (Committee, Octo- 
ber 16, 1919; Acta Ap. Sedis, XI, 479). 

(73) Concerning the procedure to prove the Matrimonium Ratum 
non Consummatum for the purpose of obtaining a dispensation of the 
marriage bond from the Holy See. 

The Code, in Canon 1119, declares that the non-consummated mar- 
viage of two baptized persons, or of a baptized and a non-baptized 
person, can be dissolved by dispensation of the Apostolic See. In 
order that the Apostolic See may grant the dispensation, two things 
must be proved: (a) that the marriage was never consummated, and 
(b) that there is a just reason for the concession of a dispensation. 


632 A PRACTICAL COMMENTARY 


Though the Roman Pontiff aloné has the power to grant this dispen- 
sation, nevertheless the Holy See usually commits to the local Ordi- 
naries the drawing up of the process by which the non-consummation 
of the marriage and the reason for a dispensation are to be proved. 
Though the process is not strictly speaking a canonical trial, but 
rather a special favor granted to the petitioner who requests a dis- 
pensation from the marriage bond, nevertheless the judge must pro- 
ceed with the same diligence as though it were a canonical trial, and 
his decrees and orders have the same force as in a canonical trial. 
Moreover, the judge, witnesses and parties must keep in mind that it 
is absolutely essential that the truth is ascertained, for, if the marriage 
was actually consummated and the truth was not discovered either 
through the fault or indifference of the court, or through the fraud 
or neglect of the witnesses and parties, the dispensation of the Su- 
preme Pontiff would be null and void through the lack of its founda- 
tion. In order that the entire procedure may be clearly known, the 
Holy See publishes a detailed instruction on every phase of the in- 
vestigation usually committed to the local Ordinaries. 

The Sacred Congregation of the Sacraments alone has the right to 
pass judgment on the non-consummation of the marriage and on the 
existence of a just reason for the dispensation (cfr. Canon 249, § 3, 
and Canon 1962). No inferior judge can institute the process in 
cases of dispensation from the bond of the matrimonium ratum non 
consummatum, unless the Apostolic See has granted that faculty to 
him. If, however, a competent judge has by his own authority con- 
ducted the trial on the nullity of marriage for reason of impotency, 
and in the course of the procedure proof is obtained of the non- 
consummation of the marriage instead of impotency, he shall forward 
all the acts together with the petition for the dispensation submitted 
by one or both parties to the Sacred Congregation of the Sacraments, 
which Congregation may make use of the acts to pass judgment on the 
matrimonium ratum non consummatum. If the proofs contained in 
the above acts are not considered sufficient to establish the non-con- 
summation of the marriage in accordance with the rules given in this 
Decree, the proofs should be completed and then forwarded to this 
Sacred Congregation. 

If in a trial, in the first or second instance, on the nullity of mar- 
riage for reasons other than impotency (e.g., defect of consent, force 
and fear, ete.), the nullity of the marriage cannot be proved, but inci- 
dentally a very probable doubt arises that the marriage was never 
consummated, one or both parties may address a petition to the 
Roman Pontiff for a dispensation from the matrimonium ratum non 
consummatum. -The judge in these eases is granted faculty to proceed 





APPENDIX III 633 


with the proof of the non-consummation of the marriage according to 
the rules of this Decree, without first requesting the Sacred Congre- 
gation for permission to institute the procedure. 

The married parties exclusively have the right to ask for the dis- 
pensation of the non-consummated marriage (Canon 1973). On ac- 
count of the exceptional nature of the process, which is governed by 
the rules here laid down, it is appropriate that the married party who 
asks for the dispensation is not called by the name of “plaintiff” but 
rather of “petitioner,” and the other party, if he does not join in the 
petition, shall be known as the “party convened” (pars conventa). 
The petition, which is always to be addressed to the Roman Pontiff 
and to be sent to the Sacred Congregation of the Sacraments, shall 
contain a complete and accurate statement of the facts of the case and 
all the reasons which may be helpful towards the obtaining of the 
requested dispensation; day, month and year and the diocese in which 
the petitioner or petitioners live, shall be noted down in the petition. 
Care must be taken that the petition contains a genuine narration of 
the facts, written, if possible, by the petitioner himself and signed by 
him. 

Though every Catholic is free to send the petition to the Holy 
See, it is preferable and also to be advised that the petition be for- 
warded through the proper Ordinary, who must add his own report. 
The proper Ordinary is the Ordinary of the place where the marriage 
was contracted or in which the petitioner has a domicile or quasi- 
domicile; in the case of a petition of a married party who is illegiti- 
mately separated from his or her spouse, the proper Ordinary is the 
Ordinary where the “party convened”—if he or she be Catholic—has 
a domicile or quasi-domicile. The petitioner may, however, have re- 
course to the local Ordinary of his or her actual habitation, who can 
accept and recommend the petition to the Sacred Congregation, espe- 
cially when several witnesses who are to be examined live in his 
diocese. 

In order that the Ordinary may add his own report with sufficient 
knowledge of the facts, he may make investigation concerning the facts 
and persons, but he cannot have a judicial inquisition properly so 
called, with the questioning of the parties and witnesses in the form 
of a judicial process. 

If it happens that the petition is made by a non-Catholic party, the 
Ordinary shall likewise forward the petition to this Sacred Congre- 
gation, adding necessary and timely explanations in reference to the 
foundation for the petition, the personal qualities of the petitioner, 
and other circumstances affecting the case. 

After he has obtained sufficient knowledge of the facts and the 


634: A PRACTICAL COMMENTARY 


persons, the Ordinary shall endeavor to reconcile the parties so as not 
to break the conjugal relations, using prudence and pastoral charity 
and arguments which seem most effective in the case, unless the cir- 
cumstances of facts and persons clearly prove that such an experiment 
would be utterly useless. The Ordinaries shall employ the cooperation 
of the pastors, and the pastors themselves, when they first hear of the 
discord or difficulties of married persons, shall of their own accord 
use all the means which prudence and charity suggest to prevent the 
breaking of the conjugal relations. 

If, from the petition of the party or from the process of the case 
which has commenced, or from other investigations which the Ordinary 
is to make before forwarding the petition, it is ascertained that the 
married couple has absolutely avoided the consummation of the mar- 
riage through the detestable crime of onanism, the petitioner—or both 
married parties, if both join in the petition—must be told that the case 
cannot be begun, or, if begun, cannot proceed further. If the peti- 
tioner asserts that he had no share whatsoever in the crime, or if he 
states he has not been without fault but proves that matters have now 
come to such a climax that it is impossible to enter in conjugal re- 
lations, and if he is sincerely sorry for his deed and seriously promises 
that in another marriage—if it will be permitted to him—he shall not 
indulge in the crime of onanism, the judge shall refer the matter to the 
Sacred Congregation. 

If, after receipt of the petition, the Sacred Congregation judges 
that the petition should be granted, it usually issues letters of dele- 
gation for the conducting of the case to the Ordinary who recom- 
mended the petitioner, and the Ordinary must conduct the case ac- 
cording to the rules of this Decree and the instructions which the 
Sacred Congregation may deem appropriate in the ease. 

After these preliminary regulations, the Sacred Congregation treats 
of the rules concerning the constitution of the tribunal and the entire 
course of procedure prior to the forwarding of the acts to the Sacred 
Congregation (Chapters III-XIV of the decree). 

Finally (in Chapter XV), it speaks of the Papal Rescript granting 
the dispensation, which is granted directly by the Roman Pontiff 
himself in forma gratiosa, and which is to be subscribed by the Cardinal 
Prefect of the Sacred Congregation of the Sacraments, or by a Cardi- 
nal who takes his place, and by the Secretary or Sub-secretary of the 
same Sacred Congregation. In view of the form in which the Rescript 
is issued, it has effect from the moment in which the Roman Pontiff in 
audience with the Secretary of the Sacred Congregation grants the 
dispensation, provided that the petition is true at that moment with 
regard to the non-consummation of marriage and the reasons for the 


APPENDIX III 635 


dispensation (cfr. Canon 41). If the petition is no longer true in 
one or the other particular, the Rescript is entirely worthless for the 
petitioner because of the statement of a falsehood or the concealment 
of the truth. 

In the Rescript of dispensation from the bond of non-consummated 
marriage is contained, though not expressed, another dispensation— 
namely from the impediment of adultery with the promise or the at- 
tempt of marriage, if such a dispensation should be necessary (cfr. 
Canon 1053). After the expenses have been paid, the Reseript of 
dispensation is handed or sent to the party who made the petition, and 
it must be exhibited to the Ordinary (cfr. Canon 51), but the Sacred 
Congregation shall officially inform the Ordinary of the grant of 
the dispensation by mailing to him an authenticated copy of the 
Rescript. The Ordinary, who has been informed of the dispensation 
by authentic document, shall order the pastor of the place where the 
now dissolved marriage was contracted and the pastor of the place 
where the parties were baptized to enter the dispensation in the mar- 
riage and in the baptismal records (Sacred Congregation of the Sacra- 
ments, May 7, 1923; Acta Ap. Sedis, XV, 389 sqq). At the end of 
the Decree, an Appendix is added containing legal formulas for the 
various acts of the procedure. 

(74) Concerning the time allowed for recourse against decree of 
removal of a pastor. 

Canon 2146 states that there is but one remedy against the final 
decree of removal of a pastor from his parish (namely, recourse to 
the Apostolic See), but that Canon does not state within what time 
such recourse must be taken. The Sacred Congregation declares that 
the recourse must be taken within ten days from the time of receiving 
notification of the decree of removal, and the days are to be counted 
according to the rule of Canon 34, n. 3 and Canon 35 (i.e., the first 
day does not count and the ten days expire with the end of the tenth 
day, not counting the first day). The time is tempus utile—t.e., if one 
is ignorant of the right to have recourse, or if one is at that time unable 
to act, he has ten days after he attains knowledge or becomes able to 
act. The Ordinary must be informed by the pastor who takes recourse 
that he has done so [Sacred Congregation of the Council (in Causa 
fomana et aliarum), January 12, 1924; Acta Ap. Sedis, XVI, 162]. 

(75) Concerning the invitation of a pastor to resign his parish. 

Does it suffice for the effect of removal to issue a public invitation 
to resign by the public posting of the edict or by publication in a 
paper or magazine, just as Canon 1720 permits a public summons to 
court, if the pastor has disappeared and conceals his place of sojourn 
with the intention of preventing the invitation from reaching him? 


636 A PRACTICAL COMMENTARY 


Answer: Canon 2143, §3, makes provision for that emergency, stat- 
ing that he who prevents an admonition from reaching him is con- 
sidered admonished (Committee, November 24, 1920; Acta Ap. Sedis, 
XII, 577). 

(76) Concerning the effect of a canonical precept with threat of 
penalty. . 

In accordance with Canon 2233, § 2, after the violation of a pre- 
cept to which a censure ferende sententie is attached, can the penalty 
be pronounced against the transgressor immediately after the offense 
has been proved, or must a new admonition be given to him before 
the censure can be pronounced? Answer: The censure can immediately 
be pronounced against him (Committee, July 14, 1922; Acta Ap. 
Sedis, XIV, 530). 

(77) Concerning the recourse to the Apostolic See after absolution 
from certain censures in danger of death. 

Canon 2252 states that, if a priest without special faculties has 
absolved a dangerously sick person from censures reserved in a most 
special manner to the Apostolic See and the penitent recovers, recourse 
is to be made by the confessor to the Sacred Penitentiary or to the 
bishop or to another who has the faculty to absolve from those cen- 
sures. ‘The question is whether Canon 2252 is to be understood in 
such a sense that recourse may always be made to the bishop, or only 
in case the bishop has faculty to absolve from those censures? An- 
swer: Recourse to the bishop may be made only if he either by law 
or by special Indult of the Holy See has faculty to absolve from the 
censures reserved in a most special manner to the Holy See (Com- 
mittee, November 12, 1922; Acta Ap. Sedis, XIV, 663). 

(78) Concerning the forbidden communication with heretical sects. 

(a) Whether the Instruction of the Sacred Congregation of the 
Holy Office, issued September 16, 1864, with reference to the partici- 
pation of Catholics in a certain society established at London for 
the reunion of all Christians, are to be applied and observed by the 
faithful also with reference to their participation in any meetings, 
public conventions and private gatherings arranged by non-Catholies 
for the purpose of uniting all organizations of Christians? Answer: 
Yes, and the above-mentioned Instruction, together with other letters 
of the Holy See to certain Anglican Puseyites, issued November 8, 
1865, are again to be published in the official organ of the Holy See 
(Holy Office, July 2, 1919; Acta Ap. Sedis, XI, 309). 

(6) Whether the doctrines called theosophism can be harmonized 
with the Catholic doctrine, and whether it is lawful to join theosophistie 
societies, be present at their conventions, and read their books, peri- 
odicals, newspapers and other writings? Answer: All these things are 
forbidden (Holy Office, July 16, 1919; Acta Ap. Sedis, XI, 317). 


ae 


APPENDIX IV 


FACULTIES GRANTED BY THE SACRED CONSISTORIAL CON- 
GREGATION AFTER THE PROMULGATION OF THE CODE 
(REVOKING FORMER FACULTIES) TO APOSTOLIC NUN- 
TIOS, INTERNUNTIOS AND DELEGATES FOR THE 
PLACES OF THEIR JURISDICTION. 


CHAPTER I 


GENERAL FACULTIES 


1. Faculty to visit either in person or through an ecclesiastic of 
tried virtue, prudence and learning, persons, places and things spoken 
of in Canons 344, 512, 1382—in particular cases, however, and by way 
of visitation—provided that the visitation seems necessary and urgent, 
that the Ordinary is unable or has neglected to hold the visitation, and 
that there is no time to have recourse to the Holy See. 

2. Faculty to draw up either in person or through an ecclesiastic 
dignitary all acts or processes concerning the men who have been 
designated by the Holy See for the episcopal or archiepiscopal dig- 
nity, in accordance with the regulations passed for the individual 
nations. | 

3. Faculty to confer on properly qualified persons those benefices 
spoken of in Canon 1435, § 1, nn. 1-3, observing the rules which have 
been or will be ordained by the Apostolic Datary. 

4, Faculty to absolve in the forum of conscience as well as in the 
external forum, as the diversity of cases may require, from all censures 
reserved by law either in a simple or special manner to the Roman 
Pontiff, imposing penances, ete., as the law requires. 

5. Faculty to dispense men already ordained—so that they may be 
permitted to say Mass and obtain or retain ecclesiastical benefices— 
from all irregularities arising from crime or defect, provided no scan- 
dal is caused by the dispensation and the man is capable of performing 
the sacred rites, with the exception of the irregularity of bigamy 
spoken of in Canon 984, n. 4; if the irregularity was caused by the 
crime of heresy or schism, the cleric shall before receiving the dis- 
pensation make the abjuration in the hands of the one who absolves 
him. 
6. Faculty to grant for reason of poverty to those who omitted 

637 


638 A PRACTICAL COMMENTARY 


the application of Mass due from foundations or from manual stipends 
permission to supply the Masses omitted in the past gradually, so that 
they, in so far as they are able, make complete satisfaction by saying, 
or having others say a few Masses each month. The number of 
Masses to be supplied is to be equitably determined by the Apostolic 
Nuntio, Delegate, etc., himself, if the matter is public; by the con- 
fessor, if the matter is occult. The men guilty of such omissions are, 
moreover, to be informed that, if they obey the orders given them in 
the matter, and have not fully supplied the omissions when death 
approaches, and have no means to arrange for the saying of the 
Masses by others, the obligation is condoned and the Holy See will 
supply the Masses from the treasury of the Church. Faculty is also 
granted, if it seems expedient in some case for reason of very special 
circumstances, to reduce the Mass obligations assumed in the past to 
a certain number, imposing as many Masses as the petitioner is able 
to satisfy, provided he has not previously neglected Mass obligations 
and obtained a reduction; the Holy Father supplies the Masses omitted 
from the treasury of the Church. 

7. Faculty to arrange a discreet settlement in the internal forum 
with those who hold an ecclesiastical benefice—even one to which the 
eare of souls is attached—and have neglected to say the divine office, 
and therefore forfeited the right to the revenue of their benefice in 
proportion to their omissions (cfr. Canon 1475, § 2). The portion of 
the income of the benefice which in the settlement is to be surrendered 
by the holder of the benefice, is to be apphed to pious works at the 
discretion of the Apostolic See. If the holders of benefices are so 
poor that a settlement for partial restitution of the forfeited income 
cannot be demanded, the Apostolic Nuntio, Delegate, ete., has power 
to condone it, but the obligation of almsgiving in proportion to the 
financial ability of the delinquent is to be imposed either by the 
Apostolic Nuntio (Delegate, ete.) or by the confessor. If others have 
a right to the forfeited portion of the income, these rights are not to 
be infringed by the settlement or condonation. 

8. Faculty to condone in the internal forum the illegally acquired 
income of a benefice, acquisition of which itself was invalid through 
real simony (simonia realis); an appropriate salutary penance is to 
be imposed, together with alms according to the delinquent’s means, 
and orders are to be given him to relinquish the benefice. If, how- 
ever, there are just and reasonable causes making the relinquishment of 
the benefice inadvisable (especially when there is question of a parish 
and there are no qualified men to whom the parish can be entrusted), 
the Apostolic Nuntio, Delegate, ete., can validate the title to the benefice. 

9. The faculty to absolve either in person or through other capable 


ee 


APPENDIX IV 639 


ecclesiastics persons who hold lands which were many years ago taken 
from the Church by the civil laws, and which they acquired by in- 
heritance from their ancestors, or by purchase or other similar contract 
with former possessors of these lands; to entitle such persons to hold 
the property lawfully as their own and to dispose of it either by 
contract or by last will, imposing upon them for once only an appro- 
priate alms of an amount to be determined at the discretion of the one 
absolving them and to be expended in favor of some church or pious 
work. 

10. To dispense from the law of abstinence in particular cases on 
days when abstinence is prescribed, even on fast days and during Lent. 

11. To allow clerics and religious, as individuals, for a reasonable 
cause the private anticipation of Matins and Lauds immediately after 
twelve o’clock noon any time during the year. 

12. To commute, because of poor eyesight or other reasonable cause 
and for as long as the cause lasts, the obligation to recite the Divine 
Office into the daily recitation of the entire Rosary of the Blessed 
Virgin or other appropriate pious prayers, without however releasing 
the one who obtained the commutation from being present in choir if 
he has that obligation. 

13. To dispense in urgent cases from the academic degrees neces- 
sary for the obtaining of certain benefices, which, by the charter of 
its foundation, require that the holder of the benefice have certain 
academic degrees, provided no prejudice to the rights of others is 
caused thereby. 

14. To grant, in accordance with the rules of the Constitution 
“Officiorum ac Munerum,” the faculty to keep and read forbidden 
books and periodicals, under the clauses and limitations which seem 
necessary or uSeful in the individual cases, and which ought to be 
those which the Holy Office employs. 

15. To commute or to dispense, considering the merits of the cases, 
all simple private vows, even those reserved to the Apostolic See, with 
the exception of those vows in which the rights of third parties would 
be injured by the dispensation. 

16. To dispense for a just cause from every oath, provided the 
rights of third parties are not injured thereby. 

17. To remit or condone to the poor in the forum of conscience 
only some part or portion of goods illegitimately taken away or re- 
tained, whenever the owners are uncertain and the cases occult; how- 
ever, the rest of the goods, if any remain in the hands of the evil 
doers, or otherwise some other sum to be fixed in proportion to the 
ability to pay, shall be distributed among the poor of the place or 
among the pious works of the place, if this procedure is feasible. 


640 A PRACTICAL COMMENTARY 


18. To receive—or to delegate:in individual cases another qualified 
ecclesiastic to reeeive—the denunciations concerning the crime of solici- 
tation, observing in all things the form and tenor of the Instruction 
to be given by the Holy Office. 

19. To prolong for a short space of time the faculties, indulgences 
and indults granted by the Holy See, which have expired without the 
petition for their extension having been duly sent to Holy See. The 
use of this faculty entails the obligation of having immediate recourse 
to the Holy See for the favor, or, if the petition has already been 
made, to petition an answer. 


CHAPTER II 
FACULTIES CONCERNING INDULGENCES 


20. To grant six times a year, on the occasion of some solemnity, 
a plenary indulgence to all the faithful who are truly contrite and 
have confessed and received Holy Communion, have visited a church 
or public oratory, and prayed there for some time for the Intentions 
of the Supreme Pontiff. The faithful who live in places where it is 
impossible or very difficult to go to Confession may be permitted to 
gain the aforesaid indulgences by substituting for the actual reception 
of the Sacraments some work of piety and firmly proposing with a 
contrite heart to confess the sins committeed as soon as they can. 

21. To grant three times a year on days to be determined by them, 
but not in the same place, the Papal Blessing according to the printed 
form inserted in these faculties, with a plenary indulgence’ to be 
gained by those who have with truly contrite hearts confessed their 
sins, received Holy Communion, assisted at the Blessing, and prayed 
for the propagation of the faith and the exaltation of the Holy Roman 
Church. 

22. To grant a plenary indulgence, not perpetually but for a 
length of time to be fixed at their discretion, to all the faithful who 
with truly contrite hearts confess their sins and receive Holy Com- 
munion during the Forty Hours’ Devotion, whenever this devotion 
is ordered to be held by the respective local Ordinaries, though for 
a good reason the formalities and ceremonies demanded by the Clemen- 
tine Instruction for the conduct of the Forty Hours’ are not observed 
in some points. 

23. To grant a plenary indulgence to be gained in the act of their 
conversion (i.e., their reception into the Catholic Church) to converts 
who return to the Catholic Church from heresy. The faculty says 
‘primo conversis” (i.e., persons who never were Catholics). 

24. To grant in particular cases or temporarily a plenary in- 





APPENDIX IV 641 


dulgence on the oceasion of a sacred mission, observing the customary 
rules (1e., Confession, Holy Communion, visit to a church, and prayer 
for the intentions of the Holy Father). 

25. To declare one altar in every church of the territory of their 
jurisdiction privileged every day of the year, in accordance with the 
precept of Canon 916. 

26. To grant during the term of their office two hundred days’ 
indulgence to all present at the sacred functions conducted by them. 

27. To erect the stations of the Way of the Cross and attach the 
indulgences to them, and to establish the pious Sodalities of the Rosary, 
of Our Lady of Mount Carmel and the Seven Dolors, with the power 
to grant this faculty at their discretion to ecclesiastics for use in places 
where there are no houses of religious who by Apostolie concession 
have the privilege to bless the stations or establish the confraternities 
or sodalities. Under the same condition, they have power to grant 
to ecclesiastics the faculty to bless and impose the scapulars of the 
aforesaid sodalities. 

28. To grant that the indulgences spoken of in the preceding articles 
may be applicable also the poor souls in purgatory by way of suffrage. 


CHAPTER III 
FACULTIES CONCERNING MARRIAGE 


29. To dispense with the impedient impediments spoken of in 
Chapter III, Title VII, Book III of the Code, provided the precepts 
therein contained are observed to the letter, especially with reference 
to dispensations from mixed religion, and the Holy Office is informed 
each year before Easter of the number and other circumstances of the 
dispensations from mixed religion granted during the past year. 

30. To dispense with the diriment impediments of minor degree 
enumerated in Canon 1042, provided the rules of Chapter II, Title 
VII, Book IIT of the Code are observed; to grant a sanatio in radice 
for marriages invalidly contracted for reason of a diriment impediment 
of minor degree, with the obligation to observe the precepts of Chapter 
XI of the same title and book and to advise the party who is conscious 
of the nullity of the marriage of the effect of the sanatio. 

31. To dispense for .... cases (the number of cases is not given 
in the general formula) from either public or occult diriment impedi- 
ments of major degree, even when the impediment is multiple, created 
by ecclesiastical (not by the divine) law, with the exception of the 
impediments arising from ordination to the priesthood and from 
affinity in the direct line after consummation of the marriage. As to 


642 A PRACTICAL COMMENTARY 


the diriment impediment of disparity of cult, it shall not be lawful to 
grant a dispensation except under the conditions laid down in Canons 
1060-1064, and, in the case of marriages of Catholics with Hebrews 
and Mohammedans, it must be certain that the unbaptized party is 
free to marry, and the danger of polygamous marriage is avoided, 
that there is no danger of the circumcision of the children, and that, 
if a civil ceremony has to be performed (because the laws of the 
country demand it), it will be merely a civil ceremony without the 
invocation of Mohammed or other kinds of superstition. 

32. To grant the sanatio in radice for .... cases (the number of 
cases is not given in the general formula) in marriages contracted in- 
validly for reason of a diriment impediment spoken of in nn. 30-31 
of these faculties, with the obligation to inform the party who is con- 
scious of the invalidity of the effect of the sanatie. If, however, the 
marriage is invalid for lack of the prescribed form of marriage, the 
sanatic is not to be granted unless it is a case in which the other party 
refuses to renew the consent before the authorized priest and witnesses, 
or if to demand the renewal of consent would threaten evil or danger 
to the other party. If, in a mixed marriage or a marriage of a Catho- 
lie with an unbaptized party, the marriage was rendered invalid by 
the non-observance of the prescribed form, and the non-Catholic can- 
not be induced to renew the consent before the Church, the sanatio is 
not to be granted unless the Catholic party assumes the obligation to 
procure—as far as lies in his power—the conversion of the other 
party and to educate the offspring in the Catholic faith; the Catholic 
party is to be absolved from the censure, if he contracted marriage 
before a non-Catholic minister and is to be reminded of the grave 
crime committed. 


CHAPTER IV 


FACULTIES CONCERNING OTHER SACRAMENTS AND SACRED 
RITES 


33. To delegate simple priests of tried virtue and knowledge for 
the administration of the Sacrament of Confirmation in those regions 
only in which there are no bishops, observing the precepts of Canons 
781, § 1, 782, § 4, 784; the delegation is to be given for some specified 
length of time. 

34, To permit in each individual case or for a certain length of 
time one low Mass in publie oratories on Holy Thursday. 

35. To permit the infirm priests during their illness, or in their 
old age, the privilege of the private oratory in which they may say 
Mass according to canonical regulations, 


. 
. 
: 





APPENDIX IV 643 


36. To permit the priests of the territory of their jurisdiction the 
use of artificial hair (wig) during the celebration of Mass, provided 
there is necessity for its use. 

37. To concede in particular cases the indult to say Mass outside 
a church or oratory and for a reasonable cause to erect an altar in 
the open air, in accordance with Canon 822, § 4. 

38. To permit priests making a voyage either on the ocean or on 
rivers to say Mass on the boat on a portable altar, provided the place 
in which Holy Mass is celebrated is not unbecoming or improper, and 
there is no danger of spilling the Precious Blood. 

39. To reconsecrate either in person or through simple priests 
delegated by him fixed as well as portable altars which, for reason of 
some defect, have lost their original consecration, with the obligation 
to observe in all points the Instruction of the Sacred Congregation of 
Rites in reference to the sacred rites prescribed in the shorter form 
of reconsecration of altars. 

40. To permit for a reasonable cause in particular cases or tem- 
porarily the saying of Mass after three o’clock in the morning, 

41. To permit temporarily Requiem Masses to be said twice or 
three times a week in some church, with the consent of the Ordinary, 
on feasts of the rank of doubles, with the exception of doubles of 
the first and second class, Sundays and other feasts of precept, and 
privileged ferias, vigils and octaves. 

42. To grant to priests of both secular and the religious clergy 
who suffer from weakness of eyesight, or from other infirmity, faculty 
to say the Votive Mass of the Blessed Virgin or of the Dead, obliging 
them to employ, if necessary, the assistance of another priest, and 
provided that, if they are pastors, they attend to the obligation of 
explaining the Gospel to the people on Sundays and holydays of 
obligation. Furthermore, to concede to priests who are entirely blind 
the faculty to say Mass, obliging them in every case to employ the 
assistance of another priest or deacon, and provided an experiment 
has been made to ascertain whether they can say Mass, and the priests 
demonstrated their ability. 

43. To grant to persons sick in bed without expectation of early 
recovery permission to receive before the expiration of one month of 
sickness Holy Communion once a week without keeping the Eucharis- 
tic fast—i.e., after having taken medicine or some liquid food (cfr. 
Canon 858, § 2). To grant to the sick who are not confined to bed 
but who suffer from an illness which, in the judgment of the physician, 
does not allow them to keep the fast without danger, permission to 
receive Holy Communion once a week without observing the Eucharis- 
tic fast, as said above. 


644 A PRACTICAL COMMENTARY 


44. To permit in individual cases that in churches in which the 
feast of some saint mentioned in the Roman Martyrology or otherwise 
approved by the Holy See is solemnly celebrated, High Masses and 
Low Masses may be celebrated differing from the Office of the Day, 
provided the Office of the Day is not a double or a Sunday of the 
first and second class, or the Vigil of Christmas, or the Vigil of Pente- 
cost, or the Octave Day of Christmas, the Epiphany or Corpus Christi, 
or Ash Wednesday, or any day of Holy Week. 

45. To delegate to any priest in places subject to their jurisdiction 
in particular cases or temporarily the faculty to consecrate according 
to the formula of the Pontificale Romanum chalices, patens and altar- 
stones, using for this purpose the holy oils blessed by a Catholic bishop. 

46. To bless church bells and consecrate churches provided they 
have advised the local Ordinary of the impending ceremony and he has 
not objected. 


CHAPTER V 


FACULTIES CONCERNING RELIGIOUS 


47. To take cognizance in extraordinary cases and in cases of 
urgent necessity of the state of some house of any religious organiza- 
tion; to lend their counsel and cooperation to superiors for the pur- 
pose of applying appropriate remedies to abuses and making the re- 
ligious return to the perfection of their state, but they must as soon 
as possible inform the Apostolic See, if they deem it necessary to decree 
something new for the utility of cloistered communities. 

48. To dispense for a just cause and at the request of the com- 
munity from the lack of the dowry required for Sisters or nuns. 

49. To concede in particular cases or temporarily faculty to the 
diocesan Ordinaries to place religious in charge of parishes, if secular 
priests are wanting, but this is to be done with the consent of the 
swperiors of the religious and under the condition that at least two 
other religious live with the pastor; in all other points the laws of the 
Sacred Canons are to be observed. 

50. To permit nuns in case of sickness and for other just reasons 
to remain outside the enclosure for a length of time to be specified by 
them; however, the nuns must be always accompanied and assisted by 
their blood relations or relations by marriage (affines) or some hon- 
orable woman, must lead a religious life in the (private) house or else- 
where, and keep aloof from association with men, as behooves virgins 
consecrated to God. The precepts of Canon 639 apply in this case. 

51. To dispense religious of either sex in the forum of conscience 
only from returning to the religious organization and to permit them 


APPENDIX IV 645 


to remain in the world, whenever they have obtained an invalid declara- 
tion of nullity of their vows, provided the nullity is occult; however, 
the vow of perpetual chastity remains, and the other vows are to be 
observed as to their essentials, until they have obtained a special dis- 
pensation from the Holy See in the matter. If those religious are 
priests, they must be ordered to wear the garb of the secular priests. 


CHAPTER VI 


FACULTIES FOR PERSONAL USE BY THE NUNTIUS OR DELE- 
GATE 


52. To recite the Divine Office and to celebrate Mass according to 
the Roman Calendar of the clergy of the City of Rome, and to concede 
that faculty to the priests living with and subject to them. 

53. To reserve the Blessed Sacrament in the oratory of their per- 
manent residences under condition that a lamp burns continually be- 
fore the tabernacle, that the key of this tabernacle is carefully guarded, 
and the other regulations of the Sacred Liturgy are perfectly observed. 
The oratory shall, by concession of the Roman Pontiff, be considered a 
public oratory. 

o4. To administer the Sacrament of Confirmation in the whole 
district of their jurisdiction and also on the ocean on their voyage 
to and on return from the place of their jurisdiction. 

55. To hear sacramental confessions of all the faithful in the place 
of their jurisdiction and on the ocean trips spoken of in the preceding 
paragraph, | 

56. To gain for themselves the indulgences which, in virtue of his 
faculties, they desire to grant to others. 

Notr: The above faculties contained in Chapters II and III and 
those enumerated in Chapter I, nn. 1 and 3; Chapter IV, nn. 33 and 
39; Chapter V, n. 47, Chapter VI, nn. 54, 55 and 56, are conceded to 
those only who have episcopal consecration, and are therefore not to 
be considered granted to those (especially the Auditor and Secretary ) 
who, during the vacancy of a Nuntiature or a Delegation, are entrusted 
with the conduct of the business, unless this is explicitly stated, even 
though the commission to attend to the office is given to them with the 
ordinary faculties. 

The representative of the Supreme Pontiff shall be careful not to 
grant those indults which he can concede temporarily for more than 
five or ten years. 


APPENDIX V 


FORMULA OF FACULTIES ISSUED TO THE INDIVIDUAL 
BISHOPS IN THE UNITED STATES AND OTHER COUNTRIES 


I. FACULTIES FROM THE SACRED CONGREGATION OF THE HoLy OFFICE 


1. To dispense for just and grave reasons his subjects, even while 
they are outside the territory of his diocese, and non-subjects while 
they are in his diocese, from the impediment of mixed religion, and, 
if necessary, also from disparity of cult ad cautelam, when the non- 
Catholic cannot before the marriage be induced to embrace the true 
Faith or the Catholic party cannot be dissuaded from the marriage. 
The faculty is granted under the proviso that, prior to the dispensa- 
tion, the promises spoken of in Canon 1061, § 2, are regularly made, 
and the Ordinary himself is morally certain that the promises will be 
kept. These promises are: on the part of the non-Catholic party to 
remove from the Catholic party danger of perversion, and on the part 
of both parties that they absolutely promise to baptize and educate all 
children, male and female, in the Catholic religion. The Catholic party 
shall, moreover, be informed of the obligation he (or she) has to work 
prudently for the conversion of the non-Catholic party to the Catholic 
Faith. 

The parties should be warned that they are forbidden to approach 
a non-Catholic minister, either before or after the marriage before 
the Church, to give or renew their consent, as forbidden by Canon 
1063, § 2, under penalty of late sententie excommunication reserved 
t) the Ordinary for the Catholic party, in accordance with Canon 2319; 
if the pastor knows with certainty that the parties will violate, or have 
already violated this law (cfr. Canon 1063), he shall not assist at their 
marriage until he has consulted the Ordinary. 

If the parties actually live in concubinage, appropriate means 
should be employed to remove scandal if it exists, and the Catholic 
party should be properly disposed to receive the grace of God, and, if 
he perhaps attempted marriage before a non-Catholic minister, he 
should be absolved from the excommunication he has incurred, and 
appropriate salutary penances should be imposed on him. 

2. To dispense for just and grave reasons his subjects even while 


646 


APPENDIX V 647 


they are outside his territory, and non-subjects while they are within 
his territory, from the impediment of disparity of cult (except in the 
case of marriage with a Jew or a Mohammedan), if it can be done 
without irreverence to the Creator, and the unbaptized party cannot 
before marriage be induced to embrace the true Faith or the Catholic 
cannot be dissuaded from the marriage. The faculty is granted with 
the proviso that, prior to the dispensation, the parties have regularly 
made the required promises, in accordance with Canon 1061, § 2, and 
that the Ordinary is morally certain that the promises will be kept. 
These promises are: on the part of the unbaptized party to remove 
from the Catholic party the danger of perversion, and on the part 
of both parties that all the children, male and female, shall be baptized 
and educated in the Catholic religion. The Catholic party shall, more- 
over, be informed of the obligation he (or she) has to work prudently 
for the conversion of the unbaptized party to the Catholie Faith. 

The parties should be warned that they are forbidden to approach 
a minister of a false cult, either before or after the marriage before 
the Church, to give or renew the consent, as forbidden by Canon 1063, 
§ 1. The precept of Canon 1063, § 2, concerning the course of action 
of the pastor in case of disobedience of the foregoing precept is to 
be strictly observed. With reference to the legitimation of the off- 
spring, Canon 1051 is to be kept in mind. 

If the parties actually live in concubinage, appropriate means are 
to be taken to remove the scandal, if there is any, and the Catholic 
party is to be properly disposed to receive the grace of God. 

For the rest, regarding the publication of the banns, the interro- 
gation concerning the consent, and the sacred rites (either in a mixed 
marriage or in one with disparity of cult), the precepts of Canons 
1026, 1102 and 1109 are to be observed, and, after such marriages have 
been contracted, either in his own territory or in the territory of another 
Ordinary, the Ordinary shall see that the married parties faithfully 
keep the promises which they have made. 

3. To validate marriages by the sanatio in radice, when marriage 
has been attempted before a civil magistrate or a non-Catholic min- 
ister by his subjects (even if they thus married outside his diocese), 
or by non-subjects if they attempted marriage in his diocese, with the 
impediment of mixed religion or disparity of cult. The faculty is 
granted with the proviso that the consent in both parties perseveres, 
and that the consent cannot be renewed in legal form, either because 
the non-Catholi¢ party cannot be admonished concerning the invalidity 
of the marriage without danger of great harm or hardship for the 
Catholic party, or because the non-Catholie party cannot in any way 
be induced to renew the consent before the Church, or to make the 


648 A PRACTICAL COMMENTARY 


promises prescribed by Canon 1061, § 2; and provided furthermore 
that there is no other diriment impediment in the case from which the 
Ordinary has no faculty to grant a dispensation or a sanatio. 


The Ordinary shall seriously impress on the Catholic party the 


very grievous offense committed, impose salutary penances on him, 
and if necessary absolve him from the excommunication, in accord- 
ance with Canon 2319, § 1, n. 1; and shall declare that, in virtue of 
the sanatio accepted by the said party, the marriage has become valid 
and legal and indissoluble by the divine law, and that the offspring 
which he has or shall have is legitimate. The Ordinary shall, more- 
over, remind the Catholic party of the obligation which he always 
has to procure, in so far as lies in his power, the baptism and educa- 
tion in the Catholic religion of all children, male and female, already 
born or to be born, and to work prudently for the conversion to the 
Catholic Faith of the non-Catholic spouse. 

As it is necessary to have proof in the external forum of the 
validity of the marriage and the legitimation of offspring, the Ordinary 
shall command that in every case the document of the sanatio, together 
with the attestation of its execution, be carefully preserved in the 
local Curia, and he shall also order that the sanatio of the marriage 
be recorded in the baptismal record in the parish where the Catholic 
party was baptized, with the day and year, unless the Ordinary thinks 
it advisable to omit this annotation. 

In every case wherein the Ordinary grants one of the foregoing 
dispensations or sanationes, he shall explicitly make mention of the 
Apostolic indult (cfr. Canon 1057), and, in the case of the faculty 
of the sanatio in radice, the Sacred Congregation permits the Ordinary 
to subdelegate pastors in individual cases only. 

The present faculties shall be valid only until the time when the 
Ordinary has to make his report to the Holy See on the state of his 
diocese, at which time he shall report to the Sacred Congregation of the 
Holy Office the number of dispensations or sanationes granted in vir- 
tue of these faculties. 

The tax or fee which is usually demanded for each dispensation, 
and which the Ordinary shall collect, shall be three dollars, unless, 
in view of the circumstances of the individual cases, that tax is 
diminished or entirely remitted because of the poverty of the petitioners 
or for other reasons. At the end of every year the Ordinary shall 
forward directly to this Sacred Congregation the fees which he has 
actually collected, from which he may subtract one-fifth for his needs 
and the needs of his diocese. 


—- . we 


eo 





APPENDIX V 649 


II. FACULTIES FROM THE SACRED CONGREGATION OF THE COUNCIL 


1. To reduc2, for five years, perpetual Mass obligations to such 
a number that the legitimately established stipend of the diocese may 
be received for every Mass, whenever the income or interest from the 
fund set aside for that purpose has been diminished, and there is nobody 
who by law is obliged and can effectively be forced to increase the 
Mass stipends. The diocesan Curia shall be notified annually of the 
celebration of the reduced number of Masses by each celebrant. 

2. To transfer, for five years, within the territory of the diocese 
obligations of Masses to days, churches and altars other than those 
specified in the foundation of those Masses, provided that there is 
real necessity, and that divine worship is not thereby diminished, and 
that nothing is done to make it more inconvenient for the people to 
hear Mass. Masses ordered by legacies (to be said on certain days, at 
certain churches or altars) are not to be transferred, if they can easily 
be said in those places by increasing the stipend. The diocesan Curia 
is to be informed by each celebrant annually of the fulfillment of the 
transferred Masses. 

3. To transfer, for five years, Mass obligations, which are too 
numerous to be said in the place where they are offered, to other places, 
even outside the diocese, provided that the greater number of Masses 
is said within the territory of the diocese, and that the precept of 
the Code of Canon Law regarding the safeguards to be taken in com- 
mitting Mass obligations to others are faithfully observed. 

4. To permit the anticipation of the private recitation of Matins 
and Lauds from one o’clock in the afternoon, whenever there is a 
reasonable cause. 

5. To permit the alienation of ecclesiastical goods to the sum of ten 
thousand dollars in the United States and in Canada; fifteen thousand 
pesos in South America and other countries. The permission can be 
granted only when necessity demands it, and when there is no time to 
have recourse to the Holy See, and the Holy See shall immediately be 
informed of the affair as soon as the alienation has been effected. 


III. Facuities or tHe Sacrep CONGREGATION OF RELIGIOUS 


1. To dispense with illegitimate birth as an impediment to joining 
a religious community, if the constitutions make illegitimacy an im- 
pediment, provided there is no question of the offspring from sacri- 
legious intercourse, and provided that the superior requests the dis- 
pensation and the one dispensed is not elected to the office of a major 
superior, in accordance with Canon 504. 


650 A PRACTICAL COMMENTARY 


2. To permit the celebration of three Holy Masses at midnight 
on Christmas in the churches of religious not comprehended in Canon 
821, § 3, with the faculty to distribute Holy Communion to those pres- 
ent. The three Masses, however, must be said by one and the same 
priest. 

3. To dispense persons who are too old to enter religious life, if 
a certain institute has an age limit in its constitutions. In each case 
the Mother General or Provincial is to be consulted, and the consent 
of such superiors and of their respective council is required, and the 
postulant must not be over forty years of age, and must possess all 
other qualifications demanded (by the general and the particular law). 

4, To dispense from the lack of the canonical age required for 
ordination to the priesthood, provided, however, that the lack does not 
exceed sixteen months. The Ordinary may use this faculty also for 
the benefit of exempt religious, provided they have received from 
their superiors the dimissorial. letters, and the candidates have all 
other qualifications required by the Sacred Canons, and have espe- 
cially completed the required course of theology in accordance with 
Canon 976, § 2. 

5. To dispense from the partial or entire lack of the dowry in the 
ease of women who wish to join a community of nuns or Sisters, pro- 
vided that the financial condition of the institute does not suffer thereby, 
and that the postulants are endowed with such qualities that one can 
entertain the well-founded hope that they will be very useful to the 
institute. 

6. To confirm the confessor for a fourth and fifth term of three 
years, provided that the majority of the religious women have given 
their consent by secret vote in a meeting called for that purpose, and 
that also those have been allowed to vote who in other affairs have 
no vote. For those who dissent and demand another confessor pro- 
vision must be made accordingly. 

7. To permit the celebration of Holy Mass on Holy Thursday and 
to allow the persons who live habitually in the community to receive 
Holy Communion and thus satisfy the obligation of the Easter Com- 
munion. 

8. To permit nuns (Sisters with solemn vows) to enter the church 
(attached to their convent) to clean and decorate it. Before the nuns 
enter the church all others who do not belong to the cloistered com- 
munity—even the confessor and the servants of the convent—must 
have left it, the doors must be locked, and the key given to the 
superioress. One nun shall never be left alone in church, and there 
must be at least two. The door which opens from the convent into 
the church shall be locked with a double lock, the key of one being 


a 


OE a 


APPENDIX V 651 


in the hands of the superioress, and that of the other in the hands of 
the nun appointed by the Ordinary. The door shall not be opened 
except in the aforesaid cases and under the prescribed precautions. 

9. To permit nuns to go outside the enclosure when a surgical 
operation becomes necessary, even though there is no imminent danger 
of death or grievous consequences. The permission lasts only for the 
time strictly necessary, and the prescribed precautions must be taken. 


IV. FACULTIES FROM THE SACRED CONGREGATION OF THE SACRAMENTS 


The Sacred Congregation of the Sacraments communicates to the 
Ordinary the following faculties in virtue of authority granted to it 
by His Holiness, Pope Pius XI. The Ordinary may make use of these 
faculties either in person or through other properly qualified ecclesi- 
astics to be specially appointed for that purpose by him. The marriage 
faculties for marriages to be contracted and for those contracted in- 
validly may be used in favor of his subjects wherever they may be at 
the time, and in favor of non-subjects if they actually stay in his 
diocese. In every case he shall explicitly mention the fact that. he grants 
the dispensation by Apostolic delegation in accordance with Canon 1057. 

1. To dispense for a just and reasonable cause from the impedient 
impediments enumerated in Canon 1058 to this extent only that the 
parties may contract marriage. 

2. For a grave and urgent cause, whenever there is danger in delay 
and marriage cannot be deferred until a dispensation from the Holy 
See can be obtained, to dispense from the impediments of major degree 
as follows: 

(a) consanguinity in the second or third degree mixed with the 
first, provided no scandal or sensation arises therefrom; 

(>) consanguinity in the second degree of the collateral line; 

(c) affinity in the first degree of the collateral line, either simple 
or mixed with the second degree; 

(d) public propriety (honestas) in the first degree, provided there 
is no possibility that one of the spouses might be the offspring of the 
other spouse. 

3. To dispense at the time and in the act of pastoral visitation 
or sacred missions, not otherwise, from all matrimonial impediments 
mentioned above in favor of those who are found living in con- 
cubinage. 

4. To validate by sanatio in radice marriage contracted invalidly 
because of one of the impediments of minor degree, if it is oravely 
inconvenient to require of the party ignorant of the impediment the 
renewal of consent, provided that the former consent perseveres and 


652 A PRACTICAL COMMENTARY 


there is no danger of a divorce, and that the party who knows of 
the impediment is informed of the effect of the sanatio, and that it 
is duly recorded in the matrimonial record. 

In the use of the faculties enumerated the precepts of Canons 
1048-1054 must be observed. 

In granting any of the aforesaid dispensations, the Ordinary shall 
make parties who are able to pay give an offering according to their 
means to the Holy See. At the end of every year the Ordinary shall 
make a report to this Sacred Congregation of the number and kind of 
dispensations granted in virtue of these faculties, and forward the 
money received as offerings for the dispensations without prejudice to 
the precept of Canon 1056 (i., a small amount of money may be 
demanded in favor of the diocesan chancery office for necessary ex- 
penditures). 

If other impediments concur with the impediments of mixed re- 
ligion or disparity of cult, recourse must be had to the Sacred Con- 
gregation of the Holy Office. 

5. To dispense deacons of his diocese from the lack of the re- 
quired age for the priesthood, not exceeding one year, for .... cases. 


V. FACULTIES FROM THE SACRED CONGREGATION OF RITES 


1. To delegate priests—if possible, men who are vested with an 
ecclesiastical dignity—to consecrate immovable and portable altars 
with the rite and form prescribed by the Pontificale Romanum, and, 
in the case of portable altars, also with the shorter form of the Roman 
Ritual. 

2. To delegate priests—if possible men vested with an ecclesiasti- 
cal dignity—to consecrate immovable and portable altars which have 
lost their consecration. In the cases of desecration spoken of in 
Canon 1200, § 2, Formula B is to be used; in the cases of desecration 
mentioned in Canon 1200, § 1, the faculty (to use the shorter form) is 
already given by the Canon, and Formula B is to be used (cfr. Decree 
of the Sacred Congregation of Rites, Sept. 9, 1920; Acta Ap. Sedis, 
XII, 449). 

3. To delegate priests—if possible, men vested with an ecclesi- 
astical dignity—to consecrate chalices and patens with the rite and 
form of the Pontificale Romanum. 

4. On the days in Holy Week on which the Passion is read in Mass, 
to permit priests who by Apostolic indult say two Masses on one 
day to omit the Passion in one Mass, and read only the last part 
(Altera autem die), saying before this portion the Munda cor meum, 
Sequentia S. Evangelit, ete, 





APPENDIX V 653 


5. To bless marriages outside of Mass, or to recite over the married 
couple the prayers according to the approved formulas, with the 
taculty to delegate. 

6. To bless and impose the five scapulars under one formula without 
recourse to the Ordinary or to the competent religious congregations. 

¢. To make use of the foregoing faculty without the obligation of 
registering the names in cases of great concourse of people at the time 
of retreats and missions, with the faculty to subdelegate. 

8. To bless holy oils on Holy Thursday with that number of 
priests and sacred ministers which the bishop can have considering 
the circumstances, places and conditions. The faculty is given to the 
officiating bishop. 

9. To permit the use of incense in High Masses said without 
deacon and subdeacon on doubles of the first and second class, Sun- 
days, and in High Masses celebrated during the Exposition of the 
Blessed Sacrament and at the altar of exposition. 

10. To permit the use of the Memériale Rituwm of Pope Benedict 
XIII in churches and public and semi-public oratories for the sacred 
functions of the three last days of Holy Week, and in the blessing of 
ashes on Ash Wednesday and of candles and palms, provided the 
sacred functions are conducted with due decorum and reverence. 

11. To bless religious objects with the Sign of the Cross and the 
observance of the rites prescribed by the Church. On the occasion 
of the pastoral visitation, when many persons ask to have diverse 
religious articles blessed which would have to be blessed with various 
formulas, the Ordinary may in these circumstances bless all the objects 
with this one short formula: “Benedicat hee omnia Deus, Pater, et 
Filius et Spiritus Sanctus. Amen.” This faculty is personal to the 
Ordinary. 

12. To celebrate a low Mass of Requiem once a weex in his own 
oratory, provided the day is not a double of the first or second class, 
a Sunday, holyday of obligation (even a suppressed one), a privileged 
octave, a feria of Lent, an Ember Day, Rogation Monday, a vigil or 
a feria on which the Mass of a Sunday, postponed or anticipated, is 
to be said. 


VI. Facuuties rrom tHm SAacrep PENITENTIARY 


To you, the Ordinary of ——-—— mentioned below, we communi- 
cate the faculties to absolve from censures and to grant dispensations, 
for five years, which you may use in the forum of conscience, also 
outside sacramental confession and outside the diocese for the benefit 
of your subjects, though you and your subject be actually outside the 


654 A PRACTICAL COMMENTARY 


territory of the diocese, in virtue of the delegation granted to you by 
special authority of the Apostolic See. These you may subdelegate 
for the territory of your diocese only to the Canon Penitentiary and 
to vicars-forane for the forum of conscience and in the act of sacra- 
mental confession only, which delegation may be habitual. As to 
other confessors, you may subdelegate them in individual cases, when 
they have recourse to you for their penitents, unless for reason of 
peculiar cimcumstances you think it advisable to subdelegate the facul- 
ties to some confessors specially appointed by you for a period of time 
which you are to determine. 

1. To absolve all penitents (with the exception of heretics pur- 
posely spreading heresy among the faithful) from all censures and 
penalties of ecclesiastical law incurred through heresies committed 
either without anyone hearing or noticing them or manifested before 
others, after the penitent has made known and denounced, as pre- 
seribed in law, the teachers who professedly teach heresy (if he knows 
any), and ecclesiastical or religious persons who perhaps were his ac- 
complices in heresy. And, if there are just reasons why he cannot 
make the said denunciation before his absolution, he may be absolved 
under the serious promise to make the denunciation as soon and as 
well as he can, and in every case he shall before being absolved abjure 
the heresies secretly before the one who absolves him. Salutary 
penances in proportion to his guilt shall be imposed on him with the 
obligation to receive the sacraments frequently and the duty to make 
retraction of his heresies before those persons before whom he mani- 
fested them and to repair the scandal which he gave. 

2. To absolve from ecclesiastical censures and penalties those per- 
sons who have defended, knowingly read: or kept in their possession 
books of apostates, heretics or schismaties, which defend apostasy, 
heresy or schism, or other books condemned by name by Letters Apos- 
tolic. Appropriate salutary penance shall be imposed on them, and 
they shall be obliged before receiving absolution, if possible, to destroy 
those books or give them to the Ordinary or to the confessor. 

3. To absolve from censures those who have directly or indirectly 
impeded the exercise of ecclesiastical jurisdiction of either the internal 
or external forum by having recourse to any laical authorities for that 
purpose. 

4. To absolve from ecclesiastical censures and penalties decreed 
against dueling in cases only which have not been brought before the 
external forum. A heavy penance is to be imposed, together with 
other conditions demanded in law. 

5. To absolve from ecelesiastical censures and penalties those who 
have joined the Masonic sect and other associations of that kind which 





APPENDIX V 655 


plot against the Church or the legitimate civil authorities. They can 
be absolved under condition only that they separate themselves entirely 
from the respective sect or society and abjure it, that they, in accord- 
ance with Canon 2336, § 2, denounce ecclesiastical and religious per- 
sons whom they know to be members, and that they deliver to the one 
absolving them books, manuscript and insignia concerning the sect 
or society, if they have any in their possession; these are to be for- 
warded as soon as possible to the Holy Office, or at least—if just and 
grave reasons prevent their being forwarded—destroyed. A grave 
penalty in proportion to the gravity of guilt is to be imposed, together 
with the obligation to receive the sacraments frequently and the duty 
to repair the scandal. 

6. To absolve from ecclesiastical censures and penalties those who 
have violated the enclosure of regulars or nuns by entering without 
legitimate permission, and those who ushered them in or admitted 
them, provided it was not done for any gravely sinful purpose, even 
though the sinful purpose was not accomplished, and provided that 
the matter has not been brought before the external forum. An ap- 
propriate penance proportioned to the gravity of the offense shall 
be imposed. 

7. To dispense persons who in violation of the vow of perfect and 
perpetual chastity made privately after the completion of the eighteenth 
year of age contracted marriage, in order that they may be permitted 
to ask for the debituwm conjugale. These penitents are to be informed 
that they are bound by the vow outside the proper use of marriage 
and if they should survive their partner. 

8. To dispense from the occult impediment of crime, after mar- 
riage has been attempted, provided the impediment was incurred with- 
out mutual cooperation (cfr. Canon 1075, § 3). The parties who live 
in invalid marriage must be informed of the necessary secret renewal 
of consent, and a heavy, long penance shall be imposed on them. 

To dispense with the occult impediment of crime before marriage 
has been attempted, provided there was no mutual codperation in the 
crime. A heavy, long penance is to be imposed. 

The intention of the Sacred Penitentiary in granting these facul- 
ties is that, if the Ordinary should perhaps out of forgetfulness or 
inadvertence make use of the faculties beyond the time specified, the 
absolutions or dispensations shall nevertheless be valid. 





BIBLIOGRAPHY 


ANTONELLI, Jos., “ Medicina Pastoralis” (3 vols., 3d ed., Rome, 1909); 
“De Conceptu Impotentie et Sterilitatis relate ad Matrimonium”’ 
(Rome, 1901). 

APPELTERN, Victor, O.M.C.,” “Compendium Prelectionum Juris Regu- 
larium” (Tournai, 1903). 

ARENDT, G., 8.J., “Circa Controversam Validitatem Matrimonii Femine 
Excise ”’ (Rome, 1923). 

AUGUSTINE, CHARLES, O.S.B., ‘A Commentary on the New Code of 
Canon Law” (8 vols., St. Louis, 1918-1922). 

Ayrinuac, H. A., S.S., “Marriage Legislation” (New York, 1919): 
“Penal Legislation” (New York, 1920); ‘General Legislation in the 
New Code of Canon Law” (New York, 1923). 

Banu, Casar, “‘Institutiones Juris Canonici” (2 vols., Florence, 1922). 

Baraiuuat, M., “Preelectiones Juris Canonici” (37th ed., 2 vols., Paris, 
1923). 

BarTMANN, Bernuarp, “ Lehrbuch der Dogmatik” (Freiburg im Breisgau, 
1911). 

Bastien, Dom Pierre, 0.8.B., “Directoire canonique” (3a ed., Bruges, 
1923). 

BaTTaNnDiER, Mer. AuBert, “Guide Canonique des Instituts A Voeux 
simples” (6th ed., Paris, 1923). 

Benepict XIV, Pops, “Opera Omnia” (17 vols., Prati, 1846). 

Brrincer, Franz, §.J., “Die Ablaisse” (15th ed. by Steinen, 8.J., 2 vols., 
Paderborn, 1922). 

BintertM, ANTON Joseru, O.F.M., “Die vorziiglichsten Denkwiirdig- 
keiten der christkatholischen Kirche ” (7 vols., 17 parts, Mainz, 1825- 
1841). 

Buiack, Henry CAMPBELL, “American Constitutional Law” (3d ed., St. 
Paul, 1910). 

Buat, AuBert, O.P., “Commentarium Textus Codicis Juris Canonici” 
(4 vols., Rome, 1919-1923). 

Burpick, Wiiu1aM L., “Law of Real Property” (St. Paul, 1914). 

Bonpint, Auoysius, O. M. Convy., ‘De Privilegio Exemptionis” (Rome, 
1919). 

Branpys, Maximmian, O.F.M., “‘Kirchliches Rechtsbuch fiir Laien- 
genossenschaften”’ (2d ed., Paderborn, 1920). 

657 


658 BIBLIOGRAPHY 


CapPELLO, Feuix M., S.J., ““De Sacramentis” (3 vols., Turin, 1921); 
“De Censuris” (Turin, 1919); “Summa Juris Publici Ecclesiastici ” 
(Rome, 1928). . 

CaAVAGNIS, CARDINAL Fetix, ‘“‘Institutiones Juris Publici Ecclesiastici” 
(3 vols., Rome, 1906). 

Crrato, Prospocimus, “Matrimonium” (3d ed., Padua, 1920); “ Cen- 
sure Vigentes”’ (2d ed., Padua, 1921); ‘‘De Delicto Sollicita- 
tionis” (Padua, 1922). 

CHELODI, JOHN, ‘‘Jus Matrimoniale” (2d ed., Trent, 1919); ‘Jus Poenale”’ 
(Trent, 1920); ‘‘Jus de Personis”’ (Trent, 1922). 

CHILDS, FRANK HALL, “‘ Personal Property” (Chicago, 1914). 

Cuark, WiLu1AM L., Jr., “Contracts” (3d ed., St. Paul, 1914). 

Crark and Marsnaut, “The Law of Crimes” (2d ed. by Herschel B. 
Lazell, Chicago, 1912). 

CLEVENGER, JOSEPH R., ‘‘New York Practice’”’ (New York, 1922). 

Coccui, Guripo, C.M., ‘‘Commentarium in Codicem Juris Canonici” (6 
vols., Turin, 1924). 

Coronata, Matrumw A., O.M.C., “De Locis et Temporibus Sacris” 
(Turin, 1922); ‘‘Jus Publicum Ecclesiasticum” (Turin, 1924). 
CrEAGH, JoHN T., ““Commentary on the Decree ‘Ne Temere’” (Balti- 

more, 1908). 

Der Becker, Juuius, ‘De Sponsalibus et Matrimonio” (2d ed., Louvain, 
1903-1908). 

DenzicErR, Henry, “ Enchiridion,” (12th ed., by Bannwart, 8.J., Freiburg 
im Breisgau, 1913). 

Des Smet, Atoystus, “De Sponsalibus et Matrimonio” (4th ed., Bruges, 
1923); ‘“De Absolutione Complicis et Sollicitatione” (2d ed., 
Bruges, 1921). 

“Digest of the Law Relating to Common Law Marriage in the United 
States”? (Washington, Government Printing Office, 1919). 

KicHMANN, Enwarp ‘‘Lehrbuch des Kirchenrechts” (Paderborn, 1923); 
‘“‘Prozessrecht”’ (Paderborn, 1921); ‘‘Strafrecht” (Paderborn, 1920). 

FanFrant, Lours I., O.P., ‘‘De Jure Religiosorum” (2d ed., Turin, 1925); 
“De Jure Parochorum” (Turin, 1924). 

Ferraris, Luctus, O.F.M., “Bibliotheca Canonica, Juridica, Moralis, 
Theologica”? (9 vols., Rome, 1885-1899). 

FreRRERES, JOHN B., 8.J., ‘‘Institutiones Canonice ” (2 vols., Barcelona, 
1917-1918). 

FREISEN, JosEPH, ‘‘Geschichte des kanonischen Eherechts” (Paderborn, 
1888-1893). 

Funricu, MAximiian, 8.J., ‘De Religiosis,” under which title he edited 
Biederlack’s “‘ De Jure Regularium”’ (Innsbruck, 1919). 

Funk, F. X., ‘‘Z6libat und Priesterehe im christlichen Altertum” in 
“Kirchengeschichtliche Abhandlungen,” I (Paderborn, 1897). 





-. in ae ee ae 


BIBLIOGRAPHY 659 


GASPARRI, CARDINAL Persp, “De SS. Eucharistia” (2 vols., Paris, 1897); 
“De Sacra Ordinatione’”’ (2 vols., Paris, 1894); “Fontes Codicis 
Juris Canonici’’ (3 vols., Rome, 1923-1925). 

GENICOT, Epwarp, S.J., “Institutiones Theologiz Moralis” (9th ed. by 
Salsman, 2 vols., Brussels, 1921). 

Haut, Frep.§., and Brooke, EvizABeru W., “American Marriage Laws” 
(New York, 1919). 

Haring, Joun B., “Grundziige des katholischen Kirchenrechts” (3d 
ed., Graz, 1924). 

Herre.e, Bishop Karu Joseru, “Konziliengeschichte”’ (7 vols., 1855- 
1874; vols., 8-9 by Cardinal Hergenréther, 1887-1890). 

Huaues, T. W., “Law of Evidence” (3d impression, Chicago, 1907); 
“Criminal Law and Procedure”’ (Indianapolis, 1919). 

Lea, CarpinaL Micuart, “Prelectiones de Judiciis Ecclesiasticis” 
(4 vols., Rome, 1899); “De Delictis et Pcenis” (2d ed., Rome, 
1910). 

Lrirner, Martin, “Lehrbuch des katholischen Eherechts” (3d ed., 
Paderborn, 1920); “Handbuch des katholischen Kirchenrechts”’ 
(4 parts, Regensburg, 1918-1921). 

Leumkun., Avaust, 8.J., “Theologia Moralis” (2 vols., 9th ed., Frei- 
burg im Breisgau, 1898). 

Lyszczarczyk, VENANTIUS, O.F.M., “Compendium Privilegiorum Regu- 
larium”’ (Leopoli, 1906). 

LINNEBORN, JOHN, “Grundriss des Eherechts”’ (Paderborn, 1919). 

Manroro, Purp, C.M.F., “Institutiones Juris Canonici” (2 vols., Madrid, 
1919). 

“Marriage and Divorce, 1867-1906” (Department of Commerce and 
Labor, Washington, 1909). 

Micueterti, A. M., “Constitutiones Seminariorum Clericalium ex Codice 
Piano-Benedictino” (Rome, 1919); ‘“Commentarium in §.C. EE. 
et RR. Decretum et Normas pro Reformatione Seminariorum” 
(Rome, 1919); “De Rectore Seminariorum Clericalium” (Rome, 
1919); “De cultu Divino, Locis, Rebus ac Temporibus Sacris”’ 
(Rome, 1924). 

Moccueciani, Peter A Monsano, O.F.M., “Collectio Indulgentiarum 
Theologice, Canorice et Histcrice Digesta” (Quaracchi, 1897). 

Notpin, H., $.J., “Summa Theclogie Moralis” (13th ed., 3 vols., Inns- 
bruck, 1920). 

Nova, JossrxH, O.P., “Commentarium Codicis Juris Canonici, De 
Judiciis” (Turin, 1920). 

Overt1, Benepict, S.J., “Synopsis Rerum Moralium et Juris Pontificii” 
(3 vois., Rome, 1912). 

PreraATHONER, Anton, ‘‘Kirchliches Gerichtswesen und _ kirchliches 
Strafrecht” (Brixen, 1919). 


660 BIBLIOGRAPHY 


Prscu, TILMANNUS, 8.J., ‘‘Institutiones Psychologice” (3 vols., Freiburg 
im Breisgau, 1896-1898). 

Pertrovits, JosepH J. C., ‘“The New Church Law on Matrimony” (Phil- 
adelphia, 1921). 

Puruiips, GeorGcE L., “Principles of Pleading” (Chicago, 1896). 

Pico, Canon J. B., “Cursus Theologize Moralis” (4 vols., Verona, 
1921). 

Pronteck, Crrm, O. F.M., “De Indulto Exclaustrationis necnon 
Secularizationis,” (Green Bay, 1925). 

Poscut, ARNOLD, ‘‘Kurzgefasstes Lehrbuch des katholischen Kirchen- 
rechts”’ (Graz, 1918). 

Pou, Josep, “ Lehrbuch der Dogmatik” (5th ed., Paderborn, 1912). 

Preuss, Artur, ‘‘A Study in American Freemasonry” (St. Louis, 1908). 

PRUMMER, inet: M., O.P., ““Manuale Juris Canonici” (3d bd Frei- 
burg im Breisgau, 1922). 

“Regula et Constitutiones Generales Ordinis Fratrum Minorum” (Qua- 
racchi, 1922). 

REIFFENSTUEL, ANACLETUS, O.F.M., “Jus Canonicum Universum” (5 
vols., Munich, 1702). 

Rossi, Josepn, “De Parcecia’”’ (Rome, 1923); ‘La Sepultura Ecclesias- 
tica e L’ Ius Funerum”’ (Bergamo, 1920). 

Ryan, Joun A., “A Living Wage” (New York, 1906); “Distributive 
Justice” (Naw York, 1919). 

Ryan and Husstern, “The Church and Labor” (New York, 1920). 

Ryan and Miiier, “The State and the Church” (New York, 1924). 

Saperti, Atoystus, 8.J., “Compendium Theologie Moralis” (27th ed. 
by Timothy Barrett, S.J., New York, 1919). 

Scuarer, Trmoruy, O.M.C., “Das Ordensrecht”? (Minster, 1923): 
‘Das Eherecht”’ (Minster, 1918). 

SCHARNAGL, Antony, ‘‘Das feierliche Geliibde als Ehehinderniss” in 
“Strassburger theologische Studien,” II, nn. 2-3 (Innsbruck, 1908). 

ScHMALZGRUBER, Francis, 8.J., “Jus Hcclesienictn Universum” (12 
vols., Rome, 1845). 

SLaTrins, MB O.F.M., ‘“Instructio de Stationibus 8. Vizee Crucis” 
(4th ed., Quaracchi, 1909). 

Soig, Jacos, “De Delictis et Poenis” (Rome, 1920). 

TANQuEREY, AD., “Synopsis Theologie Moralis et Pastoralis” (5th ed., 
3 vols., Rome, 1919). 

Toso, Canon ALBERTUS, “Commentaria Minora,’’ lib. I, Norme Gen- 
erales (Citta di Castello, 1921). 

VERMEERSCH, ARTHUR, 8.J., ‘“Theologia Moralis” (4 vols., Rome, 1923); 
“De Religiosis Institutis et Personis” (2 vols., Bruges, 1902). 

VERMEERSCH-CREUSEN, “Epitome Juris Canonici” (3 vols., Malines, 
1921). 


| 
| 
. 





BIBLIOGRAPHY 661 


ViaMinG, THEopoR M., “ Preelectiones Juris Matrimonii” (3d ed., 2 vols., 
Bussum, 1919-1921). 

WaretHorst, INNocENT, O.F'.M., “Compendium Sacre Liturgie” (9th 
ed., New York, 1915). 

Waterwortn, J., “Canons and Decrees of the Council of Trent”? (Lon- 
don, 1848). 

Wernz, Francis X., 8.J., “Jus Deeretalium” (6 vols., 2d ed., Rome, 
1905). ; 

Wernz-Vipat, “Jus Canonicum,” Vol. II, De Personis (Rome, 1923) 
Vol. V, Jus Matrimoniale (Rome, 1925). 

Wouters, Louis, C.S8.R., “De Forma Promissionis et Celebrationis 
Matrimonii”’ (5th ed., Bussum, 1919). 

ZOLLMANN, Cart, “American Civil Church Law” (New York, 1917). 


] 


PERIODICALS 


Acta Sancte Sedis (Rome, 1865-1908). 

Acta Apostolice Sedis (Rome, 1909-——), Official Organ of the Holy See. 
Archiv fiir katholisches Kirchenrecht (Mainz). 

Commentarium pro Religiosis (Rome). 

Ecclesiastical Review (Philadelphia). 

E'phemerides Theologice Lovanienses (Louvain). 

Homiletic and Pastoral Review (New York). 

Trish Ecclesiastical Record (Dublin). 

Il Monitore Ecclesiastico (Rome). 

Periodica de Re Canonica et Morali (Bruges). 

Theologisch-praktische Quartalschrift (Linz), cited as Linzer Quartalschrift. 





INDEX 


The numbers refer to paragraphs. 


Paragraphs 1 to 1190 are contained in Vol. I. 
Paragraphs 1191-2270 and all Appendices are found in Vol. IT. 


Abatement: of a lawsuit, 1693-1694. 

Abbatial Blessing: see Abbots. 

Abbots: to be called to a general 
council, 216; necessity of blessing, 
237; to receive blessing from the 
bishop of the place; powers, func- 
tions, insignia of, 539; penalty for 
neglect to receive blessing, 2258. 
See Prelates Nullius, 236-240. 

Abdication: of cardinalate or episco- 
pate by a religious, 542. 

Abduction: an impediment to matri- 
mony, 1061; penalties for, 2208. 

Ab Homine: definition, 2052; cen- 
sures, reservation, 2086-2088. 

Ab Ingressu Ecclesic, Interdict: 
what it implies, 2119. 

Abortion: irregularity incurred by 
procuring, 938; penalties, 2205. 

Abrogation: of general laws, 6; of 
particular laws, 17; of customs, 20; 
declarations on abrogation of 
former laws, App. III, 3; declara- 
tions on laws not abrogated, App. 
III, 4. 

Absence: from diocese without per- 
mission of Ordinary, 114; absence 
of bishop from diocese, 249; of pas- 
tors, 341-343. 

Absolution: complicis, 789-790; from 
censures, 2089; from sin and cen- 
sure, 2091; from censures in the ex- 
ternal and internal forum, 2092; 
from censures in danger of death, 
2093; from censures outside the 
danger of death, 2094; from cen- 
sures in urgent cases, 2095-2097; 
of Freemasons and members of for- 


bidden societies, 2189; penalty for 
unauthorized absolution from ex- 
communication, 2193. 

Abstinence, Law of: what it forbids, 
1276-1277; days of fast and absti- 
nence, and of abstinence only, 
1278-1279; binds all who have 
completed seventh year, 1280; ab- 
stinence of Saturdays in Lent 
may be transferred to Wednesdays, 
1281; particular laws contrary to 
Code are abolished, App. III, 3, h. 
abstinence ceases on holydays of 
obligation, provided they are ob- 
served as such, App. III, 50, c. 

Accomplice: priest has no jurisdic- 
tion for absolution of accomplice 
in sins of impurity, 789; excom- 
munication incurred by attempt to 
absolve, 790; penalties for priest 
who absolves accomplice, 2223. 
For accomplices in other offenses, 
see Codperators. 

Accusation, False: of solicitation, 
penalties, 2218-2219. 

Acquisition: of goods by religious, 
410; of ecclesiastical and personal 
property, 1489. 

Acta Apostolice Sedis: Official 
medium for promulgating laws of 
the Holy See, 9. 

Actions: that may be brought to 
court, 1637-1668; the suit, 1638- 
1640; sequestration and injunc- 
tion of the exercise of rights, 1641— 
1643; to halt new enterprises and 
obtain security against danger to 
one’s property, 1644-1645;  aris- 


663 


664 


ing from the nullity of acts, 1646- 
1648; for the rescission of acts and 
the restitutio ad integrum, 1649- 
1652; actions and counter-actions, 
1653-1655; possessory actions or 
remedies, 1656-1662; extinguish- 
ment of actions, 1663-1668. See 
Trials. 

Ad Limina Visit: of Bishop to Rome, 
249, 252. 

Administration: of parish by pastor, 
345-348; of goods of religious, 410- 
425; diocesan board of administra- 
tion, 1513; administration of par- 
ishes by pastors and lay trustees, 
1514; duties of board of adminis- 
tration, 1515-1518; yearly report 
of administration to the local Or- 
dinary, 1518; limitations of the 
rights of administrators, 1519- 
1521. 

Administrator: of temporal goods of 
novices before taking vows, 489. 
— Apostolic: assumption of office, 
233; rights and duties, 234; cessa- 

tion of office, 235. 

— Diocesan: elected by the Chapter 
(consultors) within eight days after 
vacancy of see, 314; election in the 
United States, 315, App. III, 3, a; 
qualifications, 316; powers, 317; 
jurisdiction, 318; support, 318; 
removal reserved to the Holy See, 
319; report to new bishop, 320; 
cannot reserve cases, 799. 

— Parochial: appointment by bishop, 
350; rights and duties, 352; re- 
movable at will of bishop, 356. 

Admission: into religious organiza- 
tion, 426-498; into postulate, 427- 
430; into novitiate, 431-480; into 
temporary and perpetual vows, 
481-496. 

Admonitions: preceding dismissal of 
religious, 573; of priests, 1983; as 
penal remedy, see Remedies, 
Penal. 

Adoption, Legal: impediment to mar- 
riage, 1037. 


INDEX 


Adult: definition, 66. For baptism 
of adults, see Baptism. 

Adultery: impediment to marriage, 
1062-1064; right of innocent party, 
1162-1165; penalties, 2212-2214. 

Affinity: definition, degrees of, 74; 
diriment impediment to marriage, 
history of impediment, 1069; com- 
putation and multiplication, 1070; 
in the United States, 1071; arises 
from valid marriage only, 1072. 

Age: necessary for the reception of 
major orders, 916; as diriment im- 
pediment to marriage, 1047; United 
States laws on age for marriage, 
1048. 

Agent: clerics must not act as agents 
for property and goods of others, 
109. 

A Jure, Censures: definition, 2052; 
reserved to Ordinary or the Apos- 
tolic See, 2086. 

Alienation: of goods and property of 
religious, 414-416; of ecclesiastical 
goods, 418, 1523-1524; when per- 
mission must be obtained from the 
Holy See, and when from local Or- 
dinary, 1525, App. III, 59, c; ex- 
planation of term “ alienation,’ 
1526; defense of the Church against 
unlawful alienation, 1527; valida- 
tion by Ordinary of invalid aliena- 
tion, App. III, 59, d; donations by 
or to the Church, 1528-1531; sale 
or disposal of votive offerings, App. 
III, 59, a-b. 

All Souls’ Day: Indult to say three 
Masses on, 705; remuneration for 
second or third Mass, App. III, 
&, Cs 

Alms: right of Mendicant Orders to 
collect, 536, App. III, 24; limita- 
tion of other congregations, 537; 
qualifications of those who collect, 
538; collection forbidden without 
permission of the Apostolic See or 
the proper Ordinary and the local 
Ordinary, 1493. 

Altar Breads: see Hosts. 





INDEX 


Altar: privilege of portable altar, 721; 
must be consecrated for the celebra- 
tion of Mass, 721; in churches of the 
Oriental Rites, 722; various kinds, 
1229; structure of immovable and 
portable altars, 1230; consecra- 
tion, 1231; desecration and recon- 
secration, 1232, App. III, 47; title, 
1233; proper use, bodies must not 
be buried under or near, 1234. See 
Privileged Altar. 

Altar Wine: see Wine. 

America: immigration of priests from 
Mediterranean countries, App. III, 
ine 

Anathema: definition, 2100. 

Annual Confession: precept of, 824; 
how the year is computed, 825. 

Antimensia: cloths used in the Ori- 
ental rites for the celebration of 
Mass, not permitted to priests of 
the Latin Rite, 722. 

Apostacy from the Faith: definition, 
1346; penalties for and absolution 
from, 2155-2158; punished with 
irregularity, 934. 

—from Religion: definition, 561- 
562; penalties for, 563, 2241; 

Apostolic Delegate: duties and pow- 
ers of, 208; list of faculties, App. 
IV. 

Apostolic See: definition of term, 7. 

Apostolic Signatura: see Signatura, 
Apostolic. 

Appeal: from decision of vicar-gen- 
eral, 275; from court of first in- 
stance, 1579; from the provincial 
superior of a religious order, 1580; 
constitution of court of appeal, 
1581; sentences from which there 
is no appeal, 1802; procedure of 
appeal, 1803-1811; cases in which 
clerics can appeal only to the 
Apostolic See, 1986; appeal of ir- 
removable pastors against removal 
by bishop, 1987; appeal of remov- 
able pastors against removal by 
bishop, 1998; appeal of pastors 
against transfer to another parish, 


665 


2001; appeal from censures in devo- 
luto and in suspensivo, 2083-2084; 
appeal from vindicative penalties, 
2128-2129; penalty for appeal 
against the Roman Pontiff to an 
(cumenical Council, 2185. 

Application of decrees or answers of 
Sacred Congregations: particular 
or general, 9. 

— of Mass: for the people in Vicari- 
ates and Prefectures Apostolic, 229; 
by the bishop, 250-251; by the 
pastor, in the United States, 344- 
345; persons for whom Mass may 
be applied, 711-713. 

Appointment: to ecclesiastical office, 
116-122; of pastors, 310, 333-336. 

Archbishop: to be called to a Gen- 
eral Council, 174; honors and 
jurisdiction, 212; rights and priv- 
ileges, 213; use of pallium, 214; 
right of precedence, 215. 

Archconfraternities: see Associations. 

Architecture: approved ecclesiastical 
traditions to be followed, 1202. 

Archives: diocesan, 279; secret, 280; 
custody of keys, 281; custody of 
cathedral, collegiate, parochial, and 
institutional archives, 282-283; 
penalties for violations of regula- 
tions concerning diocesan archives, 
2261. 

Articles, Religious: may have vari- 
ous indulgences, 851. 

Ashes, Distribution of: on first Sun- 
day in Lent, 1190; App. III, 45, b. 

Assistant Priest: appointment, 353, 
App. ITI, 17, ec; in parish belonging 
to religious community, 354; resi- 
dence, rights and duties, 355, App. 
III, 17, d; removal, 356; powers, 
357; office could be erected into 
benefice, but in the United States 
such practice is not usual, 1425. 

— at Mass: permitted to prelates 
and tolerated at first Solemn Mass 
of newly ordained priest, 715. 

Associations: subject to the Church, 
582; erection, 583; vicar-general 


666 INDEX 


and letters of erection, 584; right 
of legal person, 585; approval of 
statutes, 586; rights, 587; admis- 
sion and expulsion of members, 
588; membership in several per- 
mitted save in Third Orders, 589; 
admission and dismissal of mem- 
bers, 589-591; government, 592- 
594; kinds, 595; Third Orders 
Secular, 596-599; confraternities 
and pious unions, 600-607; arch- 
confraternities and primary unions, 
608-611; societies forbidden to the 
people, 2188-2190. See Pious 
Unions. 

Attorney: right of all to an attorney, 
and appointment of same, 1629; 
_ qualifications, 1631; must obtain 
approval from Ordinary, 1632, 
App. III, 65; must have commis- 
sion from the party or the judge, 
1633; rejection and removal, 1635; 
forbidden to buy lawsuit or make 
agreement for immoderate profit, 
1636. 

Auditor (at ecclesiastical trials): ap- 
pointment and office, 1572. 

Authority, Ecclesiastical: penalty for 
abuse, 2260. 

Auxiliary Bishop: see Coadjutor 
Bishop. 


Bail: clerics forbidden to go bail, 106. 
Banns of Marriage: may be pub- 
lished at any time of the year, 1139; 
pastor’s duty to publish, 994; time 
and place of publication, 994; 
previous investigation, 995; no 
banns for mixed marriages and 
others performed with dispensa- 
tion from disparity of cult, 996; 
obligations imposed on the faith- 
ful who know of impediments, 
997; faculty of bishop to dispense 
from banns, 998; formalities of 
publication, 999; procedure when 
doubt about impediment arises in 
course of publication, 1000; pro- 
cedure when certain impediment is 


discovered, 1001; announcement 
of marriage in American civil law, 
: 

1005. 


Baptism: effect, 64; rebaptism, 627; 


foundation of all other sacraments, 
632; matter and form, 632; min- 
ister, 633; deacon, extraordinary 
minister, 634; private baptism, 
635; duties of pastors, 636; bap- 
tism of adults, 637; subject of bap- 
tism, 638; unusual cases of infant 
baptism, 639-641; baptism of 
abandoned infants, 642; of infants 
of non-Catholic parents, 643; of in- 
fants of heretical or schismatic 
parents, 644; adults to be baptized 
only with their knowledge and con- 
sent, 645; procedure in extreme 
cases where there has been no man- 
ifestation of intention, 646; priest 
should be fasting at baptism of 
adults, 647; baptism of mentally 
defective persons, 648; rites and 
ceremonies, 649; Latin and Ori- 
ental Rites, 650, App. III, 29, a; sol- 
emn baptism and baptismal water, 
651, App. III, 29, b-c; private 
baptism, supplying the ceremonies, 
bishop may permit private condi- 
tional baptism of converts from 
Christian sects, 653, App. III, 29, 
f; Christian name to be given, 654; 
sponsors, 655-658; requisites for 
valid sponsorship, 659; Protestants 
or schismatics may not be sponsors, 
660-661; appointment of sponsors, 
661; sponsorship by proxy, 662; 
physical contact necessary for valid 
sponsorship, 663; requisites for 
licit sponsorship, 664; sponsorship 
of the minister, 665; spiritual 
relationship of the sponsors, 666; 
duties of sponsors, 667; time and 
place of baptism, 668-670; infants 
should be baptized as soon as pos- 
sible, 668; limit of delay, 669; 
place of baptism, 670; parish 
church must have baptismal font, 
671; baptism in non-parochial 


r 





INDEX 


church of extensive parish, 672; 
solemn baptism in private houses, 
673; recent declaration on baptism 
in private houses, App. III, 29, e; 
record and proof, 674-679, App. 
III, 29, d; irregularity incurred by 
those who allow themselves to be 
baptized by non-Catholic, 933; 
doubtful baptism considered valid 
in reference to impediment of dis- 
parity of cult, 1054. 
Baptism by non-Catholics: 
cause irregularity, 935. 
Baptized in the Catholic Church: 
explanation of the term, 1053. 
Basilica: explanation of title, 1218. 
Beads, Prayer: see Rosaries. 
Beard: bishop may forbid clergy to 
have beard, App. III, 7, ec. 
Beatification: cases subject to the 8S. 
Congregation of Rites, 197; proc- 
ess, 1906; postulator, 1907-1909; 
the Cardinal Relator, promoter of 
the faith and sub-promoters, 1910- 
1912; notary, chancellor and attor- 
neys of the process, 1913-1915; 
proofs to be submitted in the proc- 
ess, 1916-1919; witnesses and their 
obligations, 1920-1922; qualifica- 
tions of witnesses, 1923-1924; ap- 
pointment and duties of -experts, 
1925; documents to be inserted in 
the process, 1926-1928; process by 
way of non-cult, oath and those who 
must take it, 1929; processes to be 
conducted by the local Ordinary in 
his own right, 1930-1933; exam- 
ination of the writings of the Ser- 
vant of God, 1934-1938; informa- 
tive process to be conducted by 
the Ordinaries, 1939-1942; the 
process of non-cult, 1943; trans- 
mission of the processes to the 
Sacred Congregation, 1944-1945; 
introduction of the cause before the 
S. Congregation: review of the 
writings, 1946-1948; discussion 
on the informative process, 1949- 
1954; discussion of the process 


may 


667 
on non-cult, 1955-1956; Apos- 
tolic Processes: the institution 


of the Apostolic Process, 1957- 
1962; judgment on the validity 
of the Apostolic Process, 1963- 
1964; trial on heroism of virtues in 
particular, or on the martyrdom 
and its causes, 1965-1968; judg- 
ment of the miracles of a servant of 
God in particular, 1969-1973; proc- 
ess of beatification of servants of 
God by way of Cult or the Excep- 
tional Case, 1974-1980. 
Beatification and Canonization: mat- 
ters concerning causes may not be 
printed without permission of the 
S. Congregation of Rites, 1402. 
Bells: every church should have 
blessed or consecreted bells, 1208; 
consecration pertains to the local 
Ordinary, 1208; small bell to be 
rung by server at Mass, App. III, 
31, e. 
Benediction of the Blessed Sacra- 
ment: 1302, App. III, 51, ec. 
Benefices: subject to the Apostolic 
Datary, 205; loss by religious pro- 
fession, 493; benefices denied to 
secularized religious, 559; defini- 
tion and status in the United States, 
1423; various kinds, 1424; offices 
which are not benefices in law, 1425; 
meaning of the term in the Code, 
1426; erection of benefices, 1427- 
1431; union, transfer, dismem- 
berment, conversion and suppres- 
sion of benefices, 1432-1436; par- 
ishes united with houses of 
religious as benefices, 1437; power 
of Ordinary to transfer benefices, 
1438; Ordinaries can divide any 
parish, despite the wish of the pas- 
tor, and erect a perpetual vicariate 
or a new parish, 1439, App. III, 
55; dividing parishes in the United 
States, 1440; dividing parishes of 
religious, 1441; manner of pro- 
cedure of local Ordinary in making 
changes in benefices, 1442; impo- 


668 


sition of pensions on_ benefices, 
1443, App. ITI, 56, a-b; imposition 
of tax in conferring benefices, App. 
III, 56, d; those who have right to 
confer benefices, 1445; benefices re- 
served to the Holy See, 1446, App. 
III, 56, c; rules regulating valid 
conferring of benefices, 1447-1450; 
installation into benefices, 1451; 
conflicting claims to benefices, 1452; 
right of patronage, see Patronage; 
appointment to benefice a right of 
the local Ordinary, 1467; rights and 
duties of beneficiaries, 1471-1478; 
resignation and commutation of 
benefices, 1479-1480, App. III, 56, 
a-b; exchange of benefices, 1481; 
effects of suspension from benefice, 
2122-2125; removal from irre- 
movable and removable benefices 
as a penalty, 2140. 


Bequests: in favor of the Church, 


should, if possible, comply with 
civil law, 1506; will of donor to be 
faithfully executed, 1507; Ordinar- 
ies the executors of all bequests, 
1508; Ordinary to be notified of all 
pious bequests and donations ex- 
cept those left in favor of exempt 
religious clerical organizations, 
1509; power of the Holy See and 
the Ordinary to alter conditions, 
1510. 


Betrothal: see Engagement, Mar- 


riage. 

Bible: translations in the vernacular, 
conditions of publication, 1406, 
App. III, 54; publication of books 
of the Sacred Scriptures, annota- 
tions or commentaries without the 
approval of competent authorities 
incurs excommunication, 2165. 
Bigamy: as a canonical irregularity, 
929; penalties, 2211. 

Bination: may be permitted by Or- 
dinary for sufficient reason, 706; 
penalty for illegal bination, 2171. 
Bishop: habitual faculties, 49, App. 
III, 9; new formula of faculties, 


INDEX 


App. V; power to dispense, 59; 
divides diocese into parishes, 170; 
residential bishops to be called to 
General Council, 174; subject to 
Metropolitan, 213; vote in Plenary 
and Provincial Councils, 216; if 
not subject to any metropolitan, 
must choose Council of neighboring 
metropolitan, 218; meetings of 
bishops every five years, 222; obli- 
gation to say Mass for the people, 
250-251, App. III, 138, a-b; quin- 
quennial report to the Holy See on 
state of diocese, 252, App. III, 13, ¢; 
visitation of the diocese, 253-254; 
may create religious congregations, 
368; power to delegate priests to 
hear confessions of all religious in 
his diocese, 399; faculties in the 
United States with regard to alien- 
ation of church goods, 418-419; au- 
thority over exempt religious, 532; 
authority over organizations ap- 
proved by the Holy See, 533; 
power to grant indulgences, 844; 
ordinary minister of Holy Orders, 
881; right to ordain restricted to 
diocese, 971; duty concerning 
mixed marriages, 1043; requisites 
for valid assistance at marriages, 
1100-1102; must explicitly desig- 
nate priest to perform marriage 
ceremony, 1103-1105; may not 
delegate priest to assist at marriage 
until demands of Canon Law are 
fulfilled, 1107; may an excommun- 
icated, suspended or interdicted 


priest be delegated to witness a 


marriage? 1108; may forbid eve- 
ning marriages, 1139; power to ap- 
point holydays of .obligation and 
days of fast and abstinence per 
modum actus, 1271; power to dis- 
pense from laws of observance of 
holydays of obligation and of fast 
and abstinence, 1272; ownership of 
the sacred utensils of a dead dish- 
op, 1320; teachers and leaders of 
the faithful committed to bishop’s 





INDEX 669 


care, 1347; office of preaching, 
1348; duty to establish Catholic 
schools, 1394; right to visit and 
supervise schools, 1397; not bound 
by the ecclesiastical prohibition 
of books, 1417; must hear reason- 
able objections to erection of new 
parish, 1429; powers and duties 
with regard to hospitals, orphan- 
ages and other non-collegiate in- 
stitutions, 1482-1486; right to 
remove irremovable pastors for 
just reasons, 1987-1996; exempt 
from the penalties of law, 2064 and 
2066; can issue a general interdict 
on a parish or people of a parish 
and a particular interdict, both 
local and personal, 2110. 

Bishop’s Jurisdiction: see Jurisdic- 
tion, Episcopal. 

Bishop’s Letter: when it has the force 
of a precept, 18. 

Blase, Saint: blessing of throats on 
feast, App. IIT, 45, c. 

Blasphemy and Perjury: penalty for, 
2176. 

Blessed Sacrament: see Eucharist. 

Blessing, Abbatial: see Abbots. 

Blessings: faculties of Cardinals, 
184; reserved and unreserved bless- 
ings, 1188; blessing of places re- 
quires powers of both Orders and 
jurisdiction, 1192; right of blessing 
places belongs to the local Ordinary 
or to the major superior of clerical 
exempt religions, 1194; record and 
proof of blessing, 1196; church 
must be blessed or consecrated be- 
fore use for divine worship, 1204; 
church of wood, iron or other metal 
may be blessed but not conse- 
crated, 1204. 

Bodily Defect: irregularity, 927. 

Bond, Marriage: perpetuity and ex- 
clusiveness, 1143. 

Books, Censorship of: scope of the 
ecclesiastical right of censorship, 
1398; without previous ecclesias- 
tical approval even laymen are for- 


bidden to publish, 1399; who gives 
permission to publish, 1400; special 
rule for the secular clergy and relig- 
ious, 1401; publication of matters 
relative to beatification, canoniza- 
tion, and indulgences, 1402-1403; 
collections of decrees, 1404; litur- 
gical books and reprints of litanies, 
1405; translations of the Bible, 
1406, App. III, 54; extent of per- 
mission to publish a book, 1407; 
rules of diocesan censorship, 1408; 
manner in which Jmprimatur is to 
be given and printed, 1409. 


Books, Prohibition of: prohibition is 


subject. to the Holy Office, 191; 
right of the Church to prohibit 
books, 1410; books condemned by 
the Holy See forbidden every- 
where in any translation, 1411; 
duty of all to assist the Church in 
this matter, 1412; consequences 
of prohibition, 1413; books for. 
bidden by law, 1414; other publi- 
cations, 1415; permission to read 
prohibited books given by law to 
certain persons, 1416; right of 
Cardinals and bishops to read for- 
bidden books, 1417; how to obtain 
faculty to read forbidden books, 
1418; obligation of booksellers, 
1419; nobody exempt from the 
natural law which forbids the read- 
ing of books that are a proximate 
occasion of sin, 1420; penalties 
incurred by those who edit or 
publish condemned books, 2162- 
2165. 


Breads, Altar: see Hosts. 
Bribery: penalty for attempted brib- 


ery of officials of the Curia, 2263. 


Bulls: issued by the Apostolic Chan- 


cery, 204. 


Burial: unbaptized infants of Cath- 


olics may not receive Christian 
burial, 1211; burial of excommuni- 
cated persons and the desecration 
of the Church, 1212; bodies of the 
faithful to be buried in consecrated 


670 


ground, cremation being forbidden, 
1235; what is meant by “‘ecclesiasti- 
cal burial,’’ 1236; burial in churches 
forbidden by the Code, 1236- 
1237, App. III, 48, a; exhuming of 
bodies, 1243; bodies of the faithful 
to be brought to the parish church 
for funeral services, 1244, App. ITI, 
49, a; burial of person dying out- 
side his own parish, 1245; of a 
Cardinal, 1246; of a holder of a 
benefice, 1247; of professed relig- 
ious and novices, 1248; of persons 
living in a religious house, in a col- 
lege or in a hospital, 1249; choice of 
burial church and cemetery, 1250- 
1254; ancestral burial places, 1255; 
rules concerning the funeral ser- 
vices, 1256-1259; the interment, 
1260-1262; burning lamps over 
graves, App. III, 48, b; funeral 
fees, 1263; proper pastor’s share in 
the funeral offerings if the funeral 
is held in another church, 1264— 
1265; funeral services in places 
where the civil law forbids to take 
body to church, App. III, 49, b; 
a church which claims special priv- 
ilege or custom against the funeral 
rights of proper pastor must prove 
its claim, App. III, 49, ce; delayed 
funeral services and canonical por- 
tion of proper pastor, App. ITI, 49, 
d; Mass at transfer of bodies, App. 
III, 49, e; Mass at transfer of 
bodies need not be said in proper 
parish church of deceased, App. 
III, 49, f.; records of the dead, 
1266; persons to whom ecclesias- 
tical burial is granted or denied, 
1267-1270; in an interdicted cem- 
etery burial must be without eccle- 
siastical rites, 2113; penalties for 
violations of laws on deprivation of 
Christian burial, 2194. 

Business: clerics forbidden to engage 
in, 113; penalty for clerics engag- 
ing in worldly enterprises forbidden 
to the clergy, 2236. 


INDEX 


Camera Apostolica: administers 
goods and rights of the Apostolic 
See, 206. 

Candles, Blessing of: for feast of St. 
Blase, App. III, 45, ec. 

Canonical Office: obligation of, 104. 

Canonization: cases subject to the S. 
Congregation of Rites, 197; for 
preceding process of beatification, 
see Beatification; no one may be 
canonized unless first raised to the 
ranks of the blessed by either a 
formal or equivalent beatification, 
1980; proof of miracles required, 
1981; Decree of Roman Pontiff 
by which he announces that the 
cause may proceed, 1982. 

Canon Law: general principles, 
1-63. 

Canons, Chapters of: history, 285; 
purpose, creation, and suppression, 
and membership, 286; chapters of 
fixed numbers, 287; support of 
chapter, 288-289, App. IIT, 15, a-c; 
conferring of dignities, precedence, 
rights, and duties, 290, App. ITI, 
15, d; canon theologian and canon 
penitentiary of cathedral churches, 
291; duties of canon theologian, 
292, App. III, 15, m-p; duties of 
canon penitentiary, 293, App. ITI, 
15, m; bishop confers every benefice 
and canonry, 294, App. ITI, 15, i; 
meaning of “properly qualified 
persons,” 295; appointment of 
honorary canons, 296; Cathedral 
Chapter precedes all others, 297; 
garb of canons, 297; statutes of 
chapter, 298; assist bishop in sol- 
emn services, 299; Divine Office, 
300; rules if church is a parish 
church, 301; services at the altar, 
Conventual Mass, 302; absence 
from choir service, 303-305, App. 
III, 15, c; meetings of the Chap- 
ter, App. ITI, 15, h; emeritus or 
jubilarian, 306, App. III, 15, g; 
faculties of penitentiary to absolve 
from reserved cases, 811; penalty if 





hts sei an eae 


INDEX 


penitentiary or theologian neglects 
office, 2240. 

Cardinals: to be called to a General 
Council, 174; creation and _ privi- 
leges, 178-181; College, 182; res- 
idence, 183; privileges, 184; priv- 
ileges of Cardinal Dean, 185; priv- 
ileges in their own churches, 186; 
during vacancy of the Roman See, 
186; burial, 1246; ownership of 
sacred utensils of a dead Cardinal, 
1319; not bound by the ecclesias- 
tical prohibition of books, 1417; 
exempt from the penalties of law, 
2064, 2066. 

Cardinal Legate: precedence, 209. 

Cardinal Protector: office and juris- 
diction, 377. 

Cardinal Relator: member of the S. 
Congregation of Rites appointed to 
report to that Congregation all 
things which favor or compromise 
a cause of beatification, 1910. 

Cardinalate: religious raised to the 
dignity of, 541. 

Carmelite Third Orders: 
transfer of members, 599. 

Cases, Reserved (to the Holy See for 
trial): 1550. 

Casus Perplexus (in matrimonial 
cases): power of local Ordinaries 
and pastors to dispense and requi- 
site conditions, 1014. See Dis- 
pensation. 

Catechetical Instruction: 
pastors, 1350-1352. 
Catechumens: baptism, 637, 638, 
645; sacramentals, 1190, App. 45, 

a, 1191; Christian burial, 1267. 

Cathedral Chapter: see Canons. 

Cathedraticum: bishop’s means of 
support in the United States, 
1478; right of local Ordinary to Ca- 
thedraticum, 1494, App. III, 58, a; 
no prescription excuses non-pay- 
ment, 1502. 

Celebret: priests must have it to 
say Mass in strange place, 699- 
702. 


rules for 


duty of 


671 


Celibacy: of the clergy, 101; vow 
not to marry an impediment to 
marriage, 1033; penalty for viola- 
tion of obligation of celibacy, 
2244, 

Cemeteries: faithful should be buried 
in blessed cemeteries, 1236; history 
of burial in churches; Code forbids 
burial in churches, except in the 
case of residential bishops, abbots 
or prelates nullius in their own 
churches, or of the Roman Pon- 
tiff, royal personages and Cardi- 
nals, 1236-1237; what is to be done 
if state laws do not allow Catholic 
cemeteries, 1238; every parish 
should have its cemetery, and 
exempt religious may have one, 
1239; special burial places for the 
faithful, clergy and infants, 1240; 
care and management of ceme- 
tery, 1241-1242; exhumation of 
bodies, 1243; choice of cemetery by 
the faithful, 1250-1254; cemetery 
adjoining an interdicted chapel is 
not interdicted, and vice versa, 
2114; penalties for violation of 
cemetery, 2182. 

Censor Librorum: duties compat- 
ible with religious life, 540. 

Censorship of Books: see Books, Cen- 
sorship of. 

Censures: definition and infliction, 
2080; should be inflicted only for 
external, grave, consummated and 
obstinate offenses, 2081; gravity 
to be judged by the external act, 
2082; censures inflicted by judicial 
sentence, 2083; inflicted by pre- 
cept of ecclesiastical superior, App. 
III, 76; appeal against threatened 
censure, 2084; multiplication of 
censures, 2085; reserved and non- 
reserved censures, 2086; should 
not be reserved unless grave neces- 
sity demands and reservation is to 
be interpreted strictly, 2087; cen- 
sures reserved to the Holy See can- 
not be reserved to the Ordinary, 


672 _ INDEX 


2088; territorial and ab homine 
censures, 2088; absolution by con- 
fessor in ignorance of the reserva- 
tion is valid unless censures is ab 
homine or reserved to the Apostolic 
See specialt modo, 2088; censure is 
removed only by legitimate abso- 
lution, 2089; one censure may be 
absolved while others remain, 2090; 
relation between absolution from 
sin and from censure, 2091; abso- 
lution in the internal and external 
forum, 2092; absolution in danger 
of death, 2093; absolution outside 
danger of death, 2094; absolution 
in urgent cases, 2095-2097, App. 
III, 77; censures in particular, 
nature and infliction of, 2098. 
See Excommunication, Interdict 
and Suspension; penalty for vio- 
lation of censure, 2193; penalties 
for obduracy under censure, 2195; 
Summary of Censures latae sen- 
tentiae, App. II. 

Ceremonial Congregation, 198. 

Cessation: of delegated and ordinary 
power, 159-160. 

Chancellor (of the Diocesan Curia): 
office, 277; is by virtue of his ap- 
pointment a notary, 1983. 

Chancery, Apostolic: duties of, 204. 

Chapters of Canons: see Canons, 
Chapters of. 

Chapters of Religious: jurisdiction, 
379; elections, 383. 

Character, Sacramental: 627. 

Chastity: vow of perfect chastity an 
impediment to marriage, 1032; 
penalties for offenses against, 2212- 
2214. See Celibacy. 

Children: Holy Communion of chil- 
dren, 751-752; to be warned by 
pastors not to marry without con- 
sent of parents, 1003; pastor must 
refer marriage of children to the 
Ordinary, 1004; duties of parents 
towards children, 1144, 1146; ex- 
cused from penalties late sententie, 
but not from penalties ferende sen- 


tentie, 2070; excommunication of 
parents who have their children 
baptized by non-Catholic ministers, 
2166, 2169; excommunication of 
persons who marry with the agree- 
ment that all or some of the chil- 
dren will be educated outside the 
Church, 2166, 2168. 

Chrism: blessed by the bishop, 680; 
whether priests may bless, 681; 
priests who have special indult to 
confirm must use chrism blessed 
by bishop, 681. 

Christian Doctrine: see Knowledge 

and Catechetical Instruction. 

Church: church of religious women 
may not be parochial, 523; what is 
meant by the term “ church,” 
1198; cannot be built without the 
consent of the local Ordinary, 
1199-1200; blessing of the corner 
stone, 1201; architecture, 1202; 
not to be used for profane purposes, 
1203; must be blessed or conse- 
crated before used for divine wor- 
ship, 1204; days on which conse- 
cration may be held, 1205; feast of 
dedication, 1206; title, 1207; bells, 
1208; loss of consecration, 1209; 
religious services in consecrated or 
blessed churches, 1210; pollution, 
1211-1213; reconciliation, 1214; 
persons who have power to recon- 
cile, 1215; custody against irrever- 
ence, 1216; right of refuge, 1217; 
title of basilica, 1218; admission 
to services must be free of charge, 
1219; administration of goods, 
1220-1222; persons bound to keep 
church in repair, 1223-1224; res- 
ervation of the Blessed Sacrament, 
1292-1296, App. III, 51, a-b; pen- 
alties for violation of church, 2182. 

Church, The: relation to the State, 
3. See Civil Power. 

Civil Power: has no jurisdiction over 
marriage contract of Christians, 
975; in countries where civil mar- 
riage and church marriage are 





. 
| 


INDEX 


required, the Church insists on 
compliance with civil law, App. 
III, 41, c; marriage between un- 
baptized persons subject to civil 
power, 981; penalty of those who 
have recourse to the civil power 
against letters or acts of the Apos- 
tolic See or its legates, 2186. 
Clergy: distinction between clergy 
and laity, 83; special vindicative 
penalties of the clergy, 2139. 
Clerical Garb: see Garb, Clerical. 
Clerics: definition, institution, and 
degrees, 84; how constituted, 85; 
jurisdiction, 85; prelates, 86; must 
belong to a diocese or to a religious 
community, 87; incardination, 88; 
implied incardination, 89; rules 
of incardination and excardination, 
90; rights and privileges, 91-94; 
obligations, 95-102; duties of life 
and conduct, 103-114; forbidden 
to promote dances for benefit of 
churches, App. III, 4, c; manner 
of procedure against clerics vio- 
lating the law of residence, see 


Residence, 2002-2007; for pen- 
alties, see Penalties, Ecclesias- 
tical. 


Cloister: see Enclosure. 

Coadjutor Bishop: granted only by 
the Roman Pontiff, rights of, 258; 
functions, 259; residence, 260; 
right of succession, 261. 

Code of Canon Law: to be text-book 
in Universities and Schools of 
Canon Law, App. ITI, 1. 

Coercion: penalties for unjust coer- 
cion to embrace clerical or religious 
life, 2207. 

College: effects of an interdict on 
college, 2115-2118; effects of sus- 
pension on individual members of a 
suspended college, 2126. 

Committee for Authentic Interpreta- 
tion of the Code: App. III, 2; App. 
Ali nen: 

Common Error: jurisdiction supplied 
by the Church, 161. 


673 


Common Life: in religious organiza- 
tions, 504. 

Communication: forbidden with an 
excommunicatus vitandus, 2108. 

Communication of Privileges: defi- 
nition, 529; in relation to confra- 
ternities and pious unions, 604. 

Communion, Holy: regulations for 
religious only directive, 507; in case 
of urgent necessity a priest of one 
Rite may give Communion in 
species of another, and faithful may 
receive at any time in any Rite, 
save as Viaticum, 747 and 765; 
obligation of natural fast, 709; 
exceptions in favor of the sick, 710; 
Communion of the faithful at mid- 
night Mass, 720, App. III, 33, d, 
the priest is the ordinary minister, 
but the deacon, with bishop’s or 
pastor’s permission for grave rea- 
sons, may also administer it, 743; 
before and after private Mass, 744; 
devotional Communion of the sick 
not reserved to the pastor, 745; 
administration of Holy Viaticum is 
right of pastor, 746; in urgent nec- 
essity Viaticum may be given in dif- 
ferent Rite, 747-748; Communion 
to be given only under species of 
bread, 749; admission of adults to 
Communion, 750; admission of 
children, 751-752, App. III, 33, 
a-b; who is not to be admitted, 
753, App. III, 33, ¢; when Con- 
fession is necessary, 754; Com- 
munion may be received only once 
a day, except in danger of death 
or to save the Blessed Sacrament 
from irreverence, 755; dispensa- 
tion from the fast, 756-758; Easter 
Communion obligatory, 759-761; 
Communion of the clergy on Holy 
Thursday, 762; frequent and daily 
Communion, 763; obligation to 
communicate in danger of death, 
764; Communion under various 
Rites, 765; days on which Com- 
munion may be given; to be given 


674 


only during hours when Mass is 
permitted, 766; during Mass priest 
may not go out-of sight of altar to 
give Communion, 767; Com- 
munion may be given wherever 
Mass may be said, 768. 

Community: effects of an interdict 
on a community, 2115-2118; ef- 
fect of suspension on individual 
members, 2126. 

Community Life: of secular clergy 
encouraged, 103; penalty for vio- 
lations in religious organizations, 
2245. 

Complaint, Bill of: definition, 1669; 
requirements, 1670; acceptance or 
rejection by the court, 1671-1672. 

Compromise: election by, 131-132; 
as a means of avoiding civil trials, 
1841; rules of the civil law of the 
place should be followed in com- 
promise, 1842; cannot be made in 
criminal cases, in matrimonial 
cases where there is a question of 
dissolving a marriage, or in matters 
pertaining to benefices, where there 
is litigation about the title itself 
to a benefice, unless a legitimate 
authority sanctions it, 18438; effect 
of a compromise is called a com- 
positio or a concordia; expenses to 
be borne equally by parties, 1844; 
compromise by arbitration 1845- 
1848. 

Concelebration: forbidden save at 
the time of ordination of priests 
and consecration of bishops, 698. 

Concubinage: persons living in pub- 
lic concubinage not to be admitted 
to Holy Communion, App. III, 
33, c; public or notorious concu- 
binage a source of the impediment 
of public propriety, 1074; clerics 
guilty of concubinage to be tried 
summarily, 1985; no appeal save 
to the Apostolic See for those con- 
victed by the Ordinary, 1986; man- 
ner of procedure against clerics 
living in concubinage, 2008-2011; 


INDEX 


cleric who keeps under his roof, or 
associates with a woman of sus- 
picious character to be admonished 
by his Ordinary, 2008; punishment 
of cleric who disobeys warning of 
the Ordinary, 2009; defense of 
such cleric, 2010-2011. 

Concursus: for the appointment of 
pastors, 333-334. 

Condemnatory Sentence: 
25, 

Condemned Doctrines: penalty for 
defending, 2161. 

Conferences: diocesan, 100; in re- 
ligious houses, 500; absence from 
the diocesan conference to be pun- 
ished by the Ordinary, 2233. 

Confession: duty of clergy to con- 
fess frequently, 95; religious even 
of exempt orders may confess to 
any approved priest of the diocese, 
for sake of peace of conscience, 400; 
superior may not exact manifesta- 
tion of conscience, 409; Confession 
of novices, 469-470; novices have 
same rights as professed, 469; or- 
dinary and extraordinary confes- 
sors for novices, 470; religious 
shall confess once a week, 507; 
of mortal sins before saying Mass, 
707-708; jurisdiction for Confes- 
sions of religious women 778; pre- 
cept of annual. Confession, 824; 
computation of the year for annual 
Confession, 825; Confession as a 
condition for gaining indulgence, 
849; penalties for attempting to 
hear Confessions without faculties, 
2222. See Confessors: Penance, 
Sacrament of. 

Confessors: in clerical religious or- 
ganizations, 399; ordinary and 
special confessors in houses of Sis- 
ters, 401, App. III, 18, g; extraordi- 
nary confessors of Sisters, 402-404; 
ordinary confessors of Sisters, 405— 
406; confessors in laical religious 
organizations of men, 407-408; 
in seminaries, 1377; in the process 


meaning, 





INDEX 675 


of beatification the confessor can- 
not be a witness to anything he 
knows from the confessional, 1920; 
in more urgent occult cases any 
confessor can, in the sacramental 
forum, suspend the obligation of 
observing a vindicative penalty 
late sententie, which would entail 
infamy or scandal, 2131. 
Confirmation: administration, bless- 
ing of the chrism, 680; priest may 
administer by special indult, but 
cannot bless the chrism, 681; min- 
ister, 682; extent of faculties of 
priests to confirm, 683;  facul- 
ties of pro-vicars and pro-prefects 
Apostolic, 684; bishop may con- 
firm strangers in his own diocese, 
685; confirmation of strangers by 
priests, 686; obligation of bishop 
to administer, 687; obligation to 
receive, 688; age for reception, 
689; time and place of reception, 
690; sponsors and their obliga- 
tions, 691; effect of change of 
law on sponsorship, App. III, 5, ¢; 
requisites for valid sponsorship, 
692; requisites for licit sponsorship, 
693; spiritual relationship, 694; 
record and proof of Confirmation, 
695; App. III, 30; penalty for 
priests who attempt to administer 
Confirmation without faculties, 
2221. 


sities, 200, App. III, 11, a, (4); 
for the Oriental Church, 201; juris- 
diction of the Congregation of 
Rites, 2. 


Consanguinity: lines and degrees, 


73; as diriment impediment to 
matrimony, 1065; in the old 
Roman Law and in the United 
States, 1066; degrees, 1067; mul- 
tiple, 1068. 


Conscience, Marriage of: laws gov- 


erning such a marriage, 1135; obli- 
gation of secrecy on the part of 
priest who assists at such a mar- 
riage, 11386-1137; such a marriage 
to be entered only in special record, 
1138. 


Consecration: of bishop, time of, 


244; of sacramentals, reserved to 
bishop or inferior cleric who has 
faculty either by law or by Apos- 
tolic indult, 1188; of sacramentals, 
1189; of places, reserved to the 
local Ordinary, 1192; bishop can- 
not delegate a priest to consecrate 
a place, though he may have an 
indult to delegate one for the con- 
secration of altars and chalices, 
1193; only the local Ordinary may 
consecrate, even those places of 
exempt religious, 1195; record 
and proof of consecration, 1196; 
penalty for consecrating a bishop 
without the papal mandate, 2226; 


penalty for bishop-elect who neg- 
glects to receive consecration in due 
time, 2254. See Church. 

Consent, Matrimonial: may not be 
renewed before a non-Catholic 


Confraternities: see Associations and 
Pious Unions. ; 

Congregations, Religious: see Re- 
ligious. 

Congregations, Sacred: President of, 


190; of the Holy Office, 191; Con- 
sistorial, 192, App. ITI, 11, a, (3); 
of the Sacraments, 193, App. III, 
11, a, (2); of the Council, 194, 
App. ITI, 11, 1, (3); of Religious, 
195, App. ITI, 11, a, (1); App. ITI, 
11, b; of the Propaganda, 196; of 
Sacred Rites, 197; Ceremonial, 
198; for Extraordinary Affairs, 
199; of Seminaries and Univer- 


minister, 1042; definition and free- 
dom of matrimonial consent, 1079; 
presupposes knowledge of the ob- 
ject of the marriage contract, 1080, 
App. III, 42, a; error vitiating 
consent, 1081; knowledge or opin- 
ion of the nullity of marriage does 
not necessarily exclude consent, 
1083; presumed in law to be in 
harmony with the nature of the 


676 INDEX 


contract, 1084; vitiated by force 
and fear, 1085-1088; to be given 
in each other’s presence, 1089; 
may not be given by letter, 1090; 
may be given by proxy; may be 
given by signs for those who are 
unable to speak, 1091; also through 
an interpreter, 1093; conditional 
consent, 1094-1097, App. ITI, 42, c; 
presumed to be present until the 
opposite is proved, 1098; renewal 
in the revalidation of marriage, 
1177-1179. 

Consistorial Congregation: 
duties, 192. 

Conspiracy: penalty for conspiracy 
against the authority of the Roman 
Pontiff, his legatees or own proper 
Ordinary, 2184. 

Constitutions: religious obliged to 
comply with, 503. 

Constitutive Blessings: 
1189. 

Consultors: election in a prelacy nul- 
lius, 239. 

Consultors, Diocesan: to be ap- 
pointed where there is no Chapter 
of Canons, requisites, 307; term 
of office, 308; are the council of the 
bishop, and may not be removed 
save for a just cause, 309; meetings, 
when consent is needed, and when 
advice, 310; they elect adminis- 
trator, 314-315; qualifications, 316; 
duties, which are incompatible 
with duties of religious life, 540. 

—, Parochial: appointment and 
duties, 284. 

Contempt of Court: when judge may 
declare one guilty of contempt, 
1768-1769; when one who fails 
to answer a summons may be de- 
clared guilty, infliction of punish- 
ment, 1770-1773; contempt by 
plaintiff, 1774-1775; one guilty of 
contempt must be condemned to 
pay the cost of the trial in so far as 
his obstinacy was the cause of the 
expenses, 1776. 


general 


definition, 


Contracts: made by religious organ- 
izations, 420-425; the civil law is to 
be observed in regard to con- 
tracts and payments of all kinds, 
unless it is contrary to divine law 
or Canon law rules otherwise, 1522; 
invalid alienation of ecclesiastical 
goods cannot be validated by local 
Ordinary, App. III, 59, d; court 
of place of contract has Jjurisdic- 
tion if defendant stays in place, 
Appell ol, op: 

Converts from Heretical Sects: im- 
peded from ordination, 949; not 
barred from religious life, 433, 
App. III, 21, b. 

Codperators: liability in offenses, 
2040; plotters are, as a rule, all 
equally guilty, 2041; the man- 
dans is principal author of the 
offense, 2042; limited liability, 
2043; negative codperators, 2044; 
liability for offense after its com- 
mission, 2045; all are jointly and 
severally obliged to pay expenses 
and repair damage, 2047; pen- 
alties, 2071. 

Corpus Christi: processions on feast, 
1314. 

Corpse: 
2181. 

Correspondence: regulation of cor- 
respondence of religious, 527. 

Council, Congregation of the: 194. 

Council, General: must be convoked 
by the Roman Pontiff, 173; per- 
sons to be called, 174; right of 
proxy, 175; permission to leave, 
176; proposal of questions, 176; 
decrees to be confirmed by the 
Roman Pontiff, 177; jurisdiction, 
177; no appeal from Roman Pon- 
tiff to a General Council, 177; 
automatically suspended by the 
death of the Roman Pontiff, 177. 

Council, Plenary: persons to be called, 
216; voting, 220; business 221. 

—, Provincial: time, place and con- 
vocation, 217; persons to be 


penalty for violation of, 





yt ee 


INDEX 


called, 218-219; voting, 220; bus- 
iness, 221. 

Councillors: of religious superiors, 
393-395; number, 393; when con- 
sent is required, 394; when advice 
is required, 395. 

Counter-actions: 1653-1655. 

Crime: irregularities arising from 
crime, 933; the impediment of 
crime in matrimony, 1062; imped- 
iment verified in adultery with at- 
tempted marriage after a civil di- 
vorce, 1063; verified in the killing 
of the spouse, 1064. 

Criminal Trials: offenses subject to 
criminal procedure must be public 
offenses, procedure, 1849; action 
of accusation and denunciation, 
1850-1852; the investigation, 1853- 
1857; 
1858-1863; the criminal prosecu- 
tion and the summons of the of- 
fender, 1864-1865. See Trials. 

Christmas: Midnight Mass and Holy 
Communion, 720, App. III, 33, d; 
holyday of obligation, 1274. 

Cult: of the Blessed Virgin, saints, 
sacred images and relics, 1304- 
1311; only those may be venerated 
with public cult who have been in- 
serted in the official list of the saints 
or beati, 1304. 

Cult, Disparity of: see Disparity of 
Cult. 

Cumulatio Facultatum: now con- 
ceded by the Code with a general 
indult to dispense from one or more 
impediments, 1021-1022. 

Curia, Roman: constitutive mem- 
bers, 187; rules, 188; controver- 
sies, 189; Tribunals, 202-203; Of- 
fices, 204-207. 

—, Diocesan: personnel, their nom- 
ination, oath of office, 266. 

Customs: immemorial customs re- 
main unless explicitly rejected by 
the Code, but ordinary customs 
contrary to the laws of the Code are 
abolished, 5; to become law, cus- 


rebuke of the offender, 


677 


toms need the consent of the legis- 
lator, 19; who can introduce cus- 
toms, 19; abrogation of customs, 
conditions for customs contra jus 
and preter jus, 20; position of the 
subjects with regard to customs, 21. 


Daily Communion: urged upon all, 
763. 

Danger of Death: baptism in such a 
case, 635, 653; necessary condi- 
tion for reception of Extreme Unc- 
tion, 861-863; power of local Or- 
dinaries and pastors to dispense in 
matrimonial matters in danger of 
death, 1011-1013, App. III, 41, a; 
assistance of excommunicated min- 
ister in danger of death, 2103. 

Dances: priests forbidden to pro- 
mote them for benefit of churches 
and other religious purposes, App. 
ITI, 4, e. 

Datary, Apostolic: duties, 205. 

Day, Liturgical: 23. 

Dead, Mass for the: 711-712. 

Dean: office, 321; rights and duties, 
322; visitation, 323; conferences 
and yearly report to the bishop, 
324. 

Death, Presumed: proof of presump- 
tion, 1025, 1051, App. III, 41, d. 
Death Sentence: cause of irregular- 

ity, 931. 

Declaratory Sentence: meaning, 25. 

Decrees: particular or general, ap- 
plication, 9; collections may be 
published only with permission of 
the respective congregations, 1404. 

Defensor Vinculi: duties as defender 
of the marriage bond and of the 
validity of ordination, 1575; acts 
of cases invalid if he is absent when 
presence is required, 1576; same 
person may not be defensor vinculi 
and prosecutor in the same case, 
1577; may not act in any case in 
which he is interested in virtue of 
consanguinity, affinity, guardian- 
ship, trusteeship, or friendship, 


678 INDEX 


1593; his right to appeal, 1801; 
duties in marriage cases, 1874; 
rights in marriage cases, 1875; may 
raise justified objections to proofs 
offered in matrimonial cases, 1888; 
has the right to be heard last in 
matrimonial cases, 1889; his opin- 
ion together with that of the bishop 
to be forwarded to Apostolic See in 
cases to establish non-consumma- 
tion of a valid marriage, 1890; 
must appeal from the first sentence 
which declares for the nullity of 
marriage, 1891; if defensor vin- 
culi of second court conscientiously 
believes no appeal should be made, 
the parties are free to marry, 1892; 
must be consulted by the Ordinary 
in declaring for nullity of a mar- 
riage by reason of some impedi- 
ment that cannot be contradicted, 
1895. 

Degradation: definition and impo- 
sition, 2146. 

Delegate, Apostolic: ordinary duties 
and powers, 208; faculties, App. 
IV. 

Delegated Jurisdiction: 149-163. See 
Jurisdiction, Ecclesiastical. 

Delegation: in marriage cases, 1103- 
1108, App. III, 48, a-b; of speci- 
fied priest for marriage, 1104, App. 
III, 48, c. 

Denunciation: false denunciation; 
the only sin which, as sin, is re- 
served to the Holy See, 805; obli- 
gation of denouncing soliciting 
priest, 805; penalties for false de- 
nunciation, 805. 

Departure, Hlegal (from a religious 
organization): see Apostacy from 
Religion and Fugitive from Relig- 
ion. 

Deposition: definition and effects, 
2144; deposed cleric who shows no 
signs of amendment is to be de- 
prived forever of right to wear cler- 
ical garb, 2145. 

Deprivation of Office: 147. 


Desecration: of churches by certain 
crimes, 1211-1213. 

Dimissorials: who may issue, 897; 
rules governing issuance and pres- 
entation, 898; repeal of privilege 
to ordain without dimissorials, 
App. ITI, 38, a; to whom may they 
be addressed, 899; limitation and 
revocation, 900; superiors of ex- 
empt religious may issue dimis- 
sorials, 902; penalty for unlawful 
issuance during vacancy of bishop- 
ric, 2265. | 

Diocesan Archives: seé Archives. 

Diocesan Consultors: see Consul- 
tors, Diocesan. 

Diocese: divided into parishes, 167; 
divided into vicariatus foranei, 
decanatus and archipresbyteratus, 
170; loss of proper diocese by 
religious profession, 494. See Domi- 
cile. 

Diriment Impediments: see Impedi- 
ments to marriage. 

Dismissal (from religious organiza- 
tion): ipso facto, 564; dismissal of 
religious in temporary vows by 
supreme head of the organization, 
565, App. ITI, 27, a; conditions of 
dismissal, 566; dismissal in case of 
insanity during temporary vows, 
App. ITI, 27, d; effects of dismissal 
on the vows, 567; dismissal of re- 
ligious with perpetual vows in non- 
exempt and laical organizations, 
568; of religious women, 569; 
causes of dismissal and who may 
dismiss, 569; dismissal in case of 
great scandal, danger or harm to 
the community, 570; trial for dis- 
missal of religious with perpetual 
or solemn vows in clerical exempt 
organizations, 571; prerequisites of 
trial, 572; admonitions and failure 
of amendment, 573; conditions of 
canonical trial, 574; immediate 
dismissal in case of scandal or harm 
to the community, 575; dismissal 
of religious in perpetual vows, 576; 





: 


INDEX 679 


effects of dismissal on cleric in 
major orders, 577; dismissal of 
members of individual societies, 
580, App. III, 27, b-c; dismissal of 
members of associations and socie- 
ties, 591. 


Disobedience: penalty for disobedi- 


ence to orders of the Roman Pon- 
tiff or of the proper Ordinary, 2184. 


Disparity of Cult: a diriment imped- 


iment to marriage, which affects 
Catholics, but not non-Catholics 
since May 19, 1918, 1052-1054; 
promises exacted from those enter- 
ing matrimony with dispensation, 
1055-1057; assistance of priest 
when promises are refused, App. 
ITI, 3, g. 


Dispensation: who may grant it, 58; 


power of bishops and local Ordinar- 
ies to grant, 59; power of pastors, 
60; reason required for dispensa- 
tion, 61; interpretation of dispensa- 
tion, 62-63; cessation, 63; dis- 
pensation from common law by 
bishop does not affect obligations 
of religious arising from the rule 
or constitutions, 535; tax for dis- 
pensations in marriage to be fixed 
by local Ordinary, 631; who may 
grant dispensations from irregu- 
larities, 953; power of ordinaries 
of exempt religious to grant dis- 
pensations, 954; power of con- 
fessors, 955; application for dis- 
pensations from irregularities and 
impediments, 956; who may grant 
dispensation from publication of 
banns of matrimony, 998; power 
of local Ordinaries and pastors to 
grant dispensations from matri- 
monial impediments in danger of 
death, 1011-1013; dispensation 
from impediments in casu  per- 
pleco, 1014-1017; when petition 
for dispensation has been sent to 
the Holy See, local Ordinaries may 
not make use of their faculties, 
save for serious reason, 1019; dis- 


pensation given in the sacramental 
forum may not be recorded, 1020; 
interpretation of legal power of 
cumulatio facultatum, 1021-1022; 
dispensation from impediments and 
for legitimation of offspring, 1023; 
mistakes about impediments in ap- 
plication for dispensation, 1024; 
dispensation from the matrimonium 
non consummatum includes dispen- 
sation from impediment of crime 
committed by adultery with prom- 
ise or attempt to marry, 1025; 
mistake and fraud in application, 
1026; execution of dispensation 
granted by the Holy See, 1027; 
fees for dispensations, 1028; Papal 
indult to be mentioned in dispen- 
sations granted by delegated power, 
1029; dispensation from solemn 
religious vow of chastity is reserved 
to the Holy See, but in danger of 
death pastor and other priests may 
dispense, 1060; dispensation from 
laws of observance of holydays of 
obligation, and of fast and absti- 
nence may be granted by bishops 
and also by pastors and religious 
superiors in individual cases, 1272. 


Divine Office: obligation of choral 


recitation in religious institutions, 
525-526. 


Divine Offices: definition, 2099; as- 


sistance of excommunicated persons 
at, 2101; offices permitted during a 
general local interdict, 2112. 


Domicile: persons who have a domi- 


cile or quasi-domicile in a dio- 
cese are bound by its particular 
laws, 12; domicile of infants, 67; 
of adults, 68-72; how domicile is 
lost, 72; domicile as a means of 
determining proper bishop, 888- 
892; domicile of a religious, 904; 
how domicile is acquired in a 
parish for the purpose of marriage, 
1112; by domicile or quasi-domi- 
cile one becomes subject to the 
local Ordinary, and can be cited to 


680 INDEX 


his tribunal, though actually absent 
from the diocese, 1553; married 
women cannot acquire proper dom- 
icile distinct from husband’s, App. 
 TII, 6; change of domicile does not 
relieve from penalty incurred for 
violation of diocesan law, 2065. 

Domus: definition of domus regu- 
laris, 365; definition of domus re- 
ligosa and formata, 365. 

Donation: made by religious, 424- 
425; by donation, blessed articles 
do not lose their indulgences, 840; 
powers of prelates and rectors con- 
cerning donations made by or to 
the Church, 1528; donations to 
rectors of churches, and to rectors 
belonging to religious communities 
are presumed given to the Church, 
and may not be refused without 
permission of the Ordinary, 1529- 
1530. 

Doubt: in positive and probable 
doubt the Church supplies juris- 
diction, 161-162. 

Doubtful Laws: lose binding force, 
13. 

Dowry: of religious organizations of 
women, 448; acquisition of, 449; 
investment: of, 450; return of, 451; 
penalty for failure to keep dowry 
intact, 2268. 

Drives: permission necessary to hold, 
536. 

Dubium Facti: Ordinary may dis- 
pense in such a case, 13. 

Duel: penalties for those engaging 
in or assisting at, 2206. 

Duties of the Clergy: community life 
encouraged, 103; the Canonical 
Office, 104; of dress and tonsure, 
105; forbidden to go bail or be 
surety, 106; games of chance, car- 
rying weapons and hunting, 107; 
with regard to secular business, 
108, 109, 113; public offices, 110; 
attendance of theatrical perform- 
ances, 111; military service, 112; 
absence from diocese, 114; penal- 


ties for unlawful desertion of duties 
by clerics, 2255. 


Easter Communion: time and obliga- 
tion, 759-761. 

Ecclesiastical Offices: see Offices, 
Ecclesiastical. 

Economus: see (conomus. 

Egress: of religious subject to Papal 
enclosure, 521; from a religious 
organization, 551-580; general 
principles, 551; who may with- 
draw, 552; exclaustratio and secu- 
larizatio, 553; of support of one 
who has withdrawn, 554; return, 
554; effects of indult of seculariza- 
tion, 555, App. III, 26; refusal of 
secularization, 556, App. III, 26; 
secularization of religious in major 
orders, 557-558; offices forbid- 
den secularized religious, 559; ef- 
fects of secularization, dismissal 
and voluntary departure in refer- 
ence to temporal goods, 560; ille- 
gal egress, fugitives, and apostates, 
561-562; penalties against apos- 
tates and fugitives, 563. See Dis- 
missal (from religious organiza- 
tion). 

Election: of the Roman Pontiff, 123; 
by chapters of religious communi- 
ties, 123; by a college, 124; convo- 
cation of voters, 125; right of suf- 
frage, 126-128; manner of voting, 
129-130; by compromise, 131-132; 
result of election, acceptance and 
renunciation, 133; assumption of 
office, 134; right of renunciation, 
135; confirmation of election, 136; 
no election, 187; removable impedi- 
ments to election, postulation, com- 
promise, 138; postulation on third 
ballot, 139; confirmation of postu- 
lation, 140; rejection and accept- 
ance of postulation, 141; election of 
major superiors, 383-385; election 
of the Supreme Pontiff valid though 
obtained through simony, to re- 





INDEX 681 


move pretext for attacking validity 
of election, 620; history of elec- 
tion of bishops, 885, 886; penal- 
ties for offenses committed in elec- 
tion of the Supreme Pontiff, 2183; 
penalties for molestation of voters 
in canonical election, 2246; offenses 
committed in election, 2247; pen- 
alty for simony in election, 2248; 
penalty for abuse of right of elec- 
tion, 2249. 


Employers: bound to pay just wage, 


and to promote temporal and spir- 
itual welfare of their workingmen, 
1517. 

Enclosure: obligation of Papal en- 
closure, 509; persons forbidden 
entrance, 510; who may enter en- 
closure of nuns, 511; entrance to 
gardens, etc., 512; enclosure in 
schools of nuns, 513; penalties for 
violation of enclosure, 514-516; 
conditions of entrance, 516; extent 
of obligation of enclosure of nuns, 
517, App. ITI, 18, f, App. ITI, 23, a; 
permission to visit nuns, 518; pro- 
tection of enclosure of nuns, 519; 
enclosure of religious houses of 
congregations of Papal and dioce- 
san law, 520; duties of custodians 
of enclosure, 521; egress of those 
subject to enclosure, 521; penal- 
ties for violation of the law of en- 
closure, 2197. 


Engagement, Marriage: nature, 982; 


acquires no force unless made ac- 
cording to law, 983, 985; formali- 
ties and witnesses, 984; reasons for 
breaking engagement, 986; break- 
ing of engagement no impediment 
to marriage, 987, App. ITI, 39; who 
may make an engagement, 988; 
injured party may sue for damages 
in case of unlawful breach of prom- 
ise, 989; force of the changes of the 
law on engagements, App. III, 
5, ¢c. 

Epilepsy: as a canonical irregularity, 
928. 


Episcopate: religious raised to this 
dignity, 541. 

Episcopal Consecration: reserved to 
the Roman Pontiff, 885 

Erection: of religious organizations, 
provinces and houses, 3868-376; 
of religious associations, 583-587; 
of pious unions and sodalities, 600, 
603. 

Eucharist: definition, 696; Holy 
Mass, 697-742 (see Mass); as a 
sacrament, 7438-768 (see Com- 
munion); must be guarded, not 
necessarily by a priest, 1293; 
churches in which the Eucharist 
may be kept, 1292-1296, App. III, 
51,a and b; must be kept in an im- 
movable tabernacle, 1297;  suf- 
ficient number of particles shall 
always be kept for Communion of 
the sick and the faithful, 1298; cult 
of the Eucharist, 1300-1303; re- 
ligious teachers must promote 
veneration for the Eucharist, 1301; 
exposition of the Eucharist, see 
Exposition, 1302-1303. 

Examination: after ordination, 99; 
for candidates to office of pastor, 
333-3835, App. III, 16, a; by the 
bishop of candidates for admis- 
sion into religious organizations 
of women, 452; of religious priests, 
499; necessary for jurisdiction in 
the Sacrament of Penance, 779- 
780; of candidates before ordina- 
tion, 961; newly ordained priest 
who refuses to take yearly exam- 
ination to be punished by the 
Ordinary, 2232. 

Examiners, Synodal: appointment 
and duties, 284. 

Exarch: see Primate. 

Excardination (of clerics); necessary 
papers, vicar-general may not grant 
papers without special mandate of 
his Ordinary, 88; by religious pro- 
fession, 89; rules governing ex- 
cardination, 90. See Domicile. 

Exclaustration: definition, 551; con- 


682 


ditions of indult of exclaustration, 
553; obligations of exclaustratus, 
554. See Egress. 


Excommunication: definition of ez- 


communicati vitandi and tolerandi, 
2100; what is forbidden to excom- 
municatt, 2101; excommunicati and 
reception or administration of Sac- 
raments and sacramentals, 2102- 
2103; deprivation of other spiritual 
favors, 2104; concerning jurisdic- 
tion of the excommunicated, 2105; 
deprivation of rights, ecclesiastical 
dignities, offices, benefices and or- 
dination, 2106-2107; faithful for- 
bidden civil communication with 
excommunicatus vitandus, 2108; ex- 
communication incurred zpso facto 
by apostates, heretics, and schis- 
matics, 2155-2158; excommunica- 
tion of those suspected of heresy, 
2159-2160; of those who defend 
condemned doctrines, 2161; of au- 
thors and publishers of books of 
apostates, heretics or schismatics, 
2162-2164; of authors and pub- 
lishers who publish books of the 
Sacred Scriptures, or annotations 
and commentaries without ap- 
proval of competent authorities, 
2165; excommunication late sen- 
tentie incurred by marriage before 
a non-Catholic minister, and by 
non-Catholic baptism and educa- 
tion of the children, 2166-2169. 


Excommunicatus Vitandus: if 


such a person has been buried in a 
sacred place, body is to be ex- 
humed with permission of the 
bishop and interred in a place not 
blessed, 1270; conditions necessary 
to render one a vitandus, 2100. 

Ex Delicto, Irregularity: definition, 
942. See Impediments to Marriage 
and Impediments to Ordination. 

Execution of Dispensations: dispensa- 
tions granted by the Holy See are 
executed by the Ordinary or the 
petitioners, according as the im- 


INDEX 


pediment is public or occult, 
1027. 

Executioner: he and assistants incur 
irregularity, 932. 

Exemption: privilege of, 378; from 
choir of religious students, 498; 
privilege of regulars, 531; author- 
ity of local Ordinary over exempt 
religious, 532; organizations with 
simple vows do not enjoy exemp- 
tion, 533. 

Ex Informata Conscientia, Sus- 
pension: manner of procedure in 
infliction and power of the Ordinary 
to inflict it on his subjects, 2015; 
issuance of the decree requires no 
formalities, 2016; content of the 
decree and its conditions, 2017; 
substitute to be appointed for the 
one suspended from any office, 
2018; conditions under which 
Suspension can be inflicted, 2019; 
ordinarily inflicted only for an 
occult offense, 2020-2021; bishop 
need not make known to the cleric 
the cause or offense for which he is 
suspended, 2022; in the case of 
recourse to the Holy See, Ordinary 
must forward proofs, but recourse 
does not suspend effect of the pen- 
alty, 2023; power of Ordinaries of 
religious to inflict suspension, 2024. 

Exorcisms: minister must have spe- 
cial and explicit permission from 
the Ordinary before pronouncing 
exorcisms, which may be _ pro- 
nounced also over non-Catholics, 
1191. 

Explicit and Implicit Content: ap- 
plication to the laws of the Code, 6. 

Exposition: rules governing Exposi- 
tion of the Blessed Eucharist, 1032, 
App. ITI, 51, e. 

Extraordinary Affairs, Congregation 
for: 199. 

Extraordinary Confessor: in religious 
communities of women, 401, 405- 
407, 2270, App. ITI, 18, g; in semi- 
naries, 1377, See Confessors. 





| 
; 
. 


INDEX 683 


Extreme Unction: see Unction, Ex- 
treme. 


Faculties: habitual, bishops’ do not 
lapse with loss of office of Ordi- 
nary, but are transmitted to suc- 
cessor, and also belong to vicar- 
general; those ordinarily enjoyed, 
49, 256; faculties which the Code 
gives to bishops for indulgencing 
religious articles cannot be dele- 
gated, App. III. 9; new formula of 
faculties of bishops, App. V; facul- 
ties of bishops in the United States 
regarding alienation of ecclesias- 
tical goods, 418-419; penalties for 
those who without faculties at- 
tempt to hear confessions, 2222. 


Fast: natural fast must be observed 


before saying Mass or receiving 
Holy Communion, 709; excep- 
tions in favor of the sick and mis- 
sionaries, 710, App. III, 31, a-b; 
dispensation from the fast and 
those whom it avails, 756-758; 
days of fast and abstinence for the 
Universal Church appointed ex- 
clusively by the Holy See, 1271; 
power of bishop, pastor and re- 
ligious superior to dispense from 
fast, 1272; reckoning of time of 
fast, 1273; law of fast, 1276- 
1277; days of fast and abstinence, 
and of fast only, 1278-1279; who is 
bound to fast, 1280; particular 
laws on fast contrary to Code 
abolished, App. ITT, 3, h; on days of 
fast only, meat may not be eaten 
more than once a day, App. III, 
50, a; persons not obliged to fast 
may eat meat several times a day 
on days of fast only, App. III, 50, 
b; if a vigil with fast falls on a Sun- 
day, the fast is not anticipated on 
Saturday, App. ITI, 50, d; if a holy 
day of obligation falls in Lent, the 
fast and abstinence do not cease, 
App. ITI, 50, e; penalty for break- 
ing the fast before Mass, 2172. 


Fenians: 


Fear: marriage entered into through 


grave fear is invalid, 1085-1088; 
the remission of a penalty extorted 
by grave fear or violence is invalid 
in law, 2078. 


Feasts: indulgences attached to, 837; 


transfer of feasts and indulgences, 
838; feast days, see Holydays of 
Obligation. 


Fees: rules regarding fees in issuing 


dispensations, 1028; marriage fees 
belong to proper pastor of con- 
tracting parties when another with- 
out necessity witnesses the cere- 
mony, 1117; funeral fees to be 
regulated by the bishop, 1263; 
proper pastor has right to share of 
fees if funeral is held in another 
parish, 1264-1265; fees for acts 
of voluntary jurisdiction to be fixed 
by the Provincial Council, or by 
bishops in convention, and ap- 
proved by the Holy See; the local 
Ordinary may demand only a small 
offering for matrimonial dispensa- 
tions, and may fix the fees for 
funeral services, 1496; for other fees 
see Stipends. 

membership forbidden 
under pain of excommunication, 
2188. 


Ferende Sententice: meaning, 25; 


definition of penalties ferende sen- 
tentie, 2052; circumstances which 
excuse from such penalties, 2053; 
imposition of such penalties, 2057; 
rules for the application of such 
penalties, 2059; may be inflicted 
by special precept, 2061; ignorance 
does not excuse from such penalties, 
2068; children not immune from 
such penalties, 2070; can be re- 
mitted only by the court that im- 
posed them or the Ordinary to 
whose court the case came by ap- 
peal, 2077. 


Field Mass: limited authority of 


bishops to permit, App. ITI, 31, g. 


Financial Report: see Report, 417. 


684 INDEX 


Fines: pecuniary fines imposed by 
common law for which no special 
purpose is specified must be used 
by the local Ordinaries for pious 
purposes, 2138. 

Flags: their admission into church, 
1262, App. ITI, 46, a. 

Flight (from religious life): penalty, 
2242. 

Flowers (placed on graves): App. 
IIT, 48, b. 

Force: marriage entered into through 
force is invalid, 1085-1088; mar- 
riage which pastor or local Ordinary 
is constrained by force or grave 
fear to witness, is not valid, 1100 
and 1102; liability for acts done 
under force or fear, 2037. 

Forgery: penalties for forgery of 
Papal documents, 2215; penalties 
for forgery of ecclesiastical docu- 
ments and records, 2217. 

Form, Canonical (of the marriage con- 
tract): definition, 1099; persons 
bound to this form of marriage, 
1125-1128. 

Forty Hours, Devotion of the: 1303. 

Forum: privileged forum of the 
clergy, 92; competent forum in 
trials, 1549-1560, App. III, 61; 
penalties for violation of the eccle- 
siastical forum, 2196. 

Founders (of religious organizations): 
perpetual superiorship, App. III, 
18, f. 

Foundations: definition of pious 
foundations, 1537; permission of 
the local Ordinary required for 
acceptance, 1538; investment of 
funds, 1539; acceptance to be 
made in writing, 1540; in churches 
of exempt religious major supe- 
rior has charge of foundations, 
1541; reduction of obligations 
reserved to the Holy See, sup- 
pression and changes of, App. 
III, 60, a; obligations of founda- 
tions cannot be accepted without 
consent of the proper Ordinary, 


1542; restricted authority of the 
Ordinary to reduce the obligations, 
1543, App. III, 60, b; faculties 
of bishops in the United States 
with regard to reduction of obliga- 
tions, 1544. 

Franciscans: title of property held 
by them is in the name of the Holy 
See, 410; rules of transfer of mem- 
bers of Third Orders of St. Francis, 
598. 

Fraud: penalties for fraud in petition 
for rescripts, 2216. 

Freemasons: marriage of Catholic 
with Freemason to be referred to 
the Ordinary, 1044; penalties for 
joining this and similar societies, 
2188; absolution of members of 
forbidden societies, 2189; what 
societies are forbidden without ex- 
communication, 2190. 

Free State (of parties to be married), 
991-993, App. III, 40. 

Free-will Offerings: of the faithful 
can serve as an endowment of a 
benefice as long as the bishop is 
morally certain that they will be 
sufficient, 1428. 

Fugitive from Religion: definition, 
561-562; penalties, 563. 

Functions: penalty for usurpation 
of priestly functions, 2173-2175. 

Funeral Services: the local Ordinary 
may fix the fees, 1496. See Fees. 


Garb, Clerical: varies in different 
countries, 105; garb of religious in 
the United States, 508; forbidden 
to laymen, 581; street garb of 
priests in the United States, 700; 
deprivation of right to wear eccle- 
siastical garb as a penalty for grave 
scandal which one does not amend 
when admonished, 2141, 2145; 
penalty for discarding the clerical 
garb, 2235. . 

General Absolution (as distinct from 
the Papal Blessing): privileges of 
the Third Orders, 832. 





Ta . on 


Ta See Va, Ee 


7 
: 
. 


INDEX 685 


Good Templars, Independent Order 
of: forbidden society, 2190. 

Goods, Temporal: right of religious 
organizations to acquire, 410; 
territorial laws concerning, 411; 
administration by superior, 412; 
investments, 413; alienation, 414— 
416; report to the local Ordinary, 
417; alienation in the United 
States, 418-419; report to regu- 
lar superior of nuns, App. III, 
19; report of Papal organizations 
to the Holy See, App. III, 20; 
contracts made by religious, 420— 
423; donations made by religious, 
424—425; temporal goods of novices 
during novitiate, 473; before 
profession, 474, App. III, 21, h; 
in organizations with solemn vows, 
475, 489; temporal goods of pro- 
fessed religious, 488-492; of sol- 
emnly professed religious, 490-491; 
of simply professed, renunciation 
forbidden in communities with 
simple vows, last will and testa- 
ment, 492; temporal goods of re- 
ligious who leave their organization, 
560; administration of temporal 
goods of churches, 1220; adminis- 
tration by clerics and laymen, 1221; 
duties of administrative council 
(Board of Trustees, in the United 
States), 1222; right of the Church 
to acquire and possess temporal 
goods, 1487; definition of ecclesias- 
tical goods, 1488; acquisition of ec- 
clesiastical and personal property, 
1489; division of goods when the 
territory of an ecclesiastical person 
is divided, 1490; goods of legal per- 
son that ceases to exist, 1491; 
tithes for the support of the Church, 
1492; collection of alms subject to 
permission of the Apostolic See, or 
proper Ordinary and local Ordinary, 
1493; power of taxation of local 
Ordinary,  cathedraticum, 1494, 
App. ITI, 58; power of bishop to 
levy extraordinary taxes, 1495; 


fees for acts of voluntary jurisdic- 
tion, matrimonial dispensations, 
and fees for funeral services, 1496; 
acquisition of ecclesiastical goods 
by prescription, 1497; what goods 
and rights are not subject to pre- 
scription, 1498-1502; special rules 
on prescription of ecclesiastical 
goods possessed by legal persons 
and by the Apostolic See, 1503- 
1504; conditions for valid pre- 
scription, 1505; whoever has 
right by natural and_ ecclesias- 
tical law to freely dispose of his 
goods may relinquish them in 
favor of religion or charity by 
donation or last will, 1506; will of 
the faithful to leave their goods by 
donation or last will to religion or 
to charity is to be faithfully exe- 
cuted, 1507; Ordinaries are execu- 
tors of all donations and bequests 
to religion or charity, 1508; cleric 
or religious who receives goods by 
donation or last will in trust for 
pious causes must notify the Ordi- 
nary, 1509; goods left to religion or 
charity in the diocese are under the 
supervision of the local Ordinary, 
save those left in favor of exempt 
religious of clerical organizations, 
1509; reduction, commutation and 
mitigation of last wills is reserved 
to the Holy See, but local Ordinary 
has some power in this regard, 1510; 
administration of ecclesiastical 
goods, 1511-1522; title of goods, 
1511; duty of local Ordinary to 
supervise administration of eccle- 
siastical goods in his territory, 
1512; members and duties of 
diocesan board of administration, 
1513; other diocesan administra- 
tors of goods, pastors, 1514; duties 
of board of administration, 1515- 
1516; employers must pay work- 
ingmen just wages, 1517; all ad- 
ministrators to make yearly finan- 
cial statement to the local Ordinary, 


686 


1518; administrators may not in- 
stitute lawsuits without consent of 
the local Ordinary, 1519; for ex- 
traordinary acts administrators 
must obtain permission from the 
local Ordinary, 1520-1521; eccle- 
siastical contracts to be made in 
accordance with civil law, 1522; 
rules governing alienation of eccle- 
siastical goods, 1523-1524, App. ITI, 
59, a-d; permission for alienation 
required and limitations imposed, 
1525; advantageous and disad- 
vantageous contracts, 1526; de- 
fense of the Church against unlaw- 
ful alienation, 1527; donations by 
or to the Church, 1528-1530, App. 
III, 59, e; loans, pledges, mort- 
gages and debts, 1531; sale and ex- 
change, 1532-1533; sale and lease 
of real estate, 1534-1536; interest 
on loans, 1536; pious foundations 
of temporal goods and ensuing ob- 
ligations of saying Mass, see 
Foundations; penalties for infring- 
ing on the goods and rights of the 
Roman Church, 2200; penalties 
for those usurping and detaining 
temporal ecclesiastical goods, 2201; 
penalties for illegal alienation of 
ecclesiastical goods, 2202; penalty 
for unjust withholding of goods 
from pious institutes, 2203. 
Graves: violation of, 2181. 


Habit: of novices, 461; wearing of 
the religious habit, 508; custom of 
wearing habit of Third Orders and 
Confraternities, 601. 

Hebdomadarian: in Chapter of Can- 
ons, App. ITI, 15, 1. 

Heresy, Suspicion of: those pro- 
moted, or who promote to orders 
through simony are guilty of, 2227; 
penalty, 2159. 

Heretics: definition, 1346; baptism 
of children of heretics, 644; valid- 
ity of orders of heretics, 881; they 
incur irregularity, 934; communi- 


INDEX 


cation forbidden with heretics in 
divine worship, 1284; penalties, 
2159-2160, App. III, 78. 

Holydays of Obligation: appointed 
by the Holy See exclusively for the 
Universal Church, 1271; holydays 
may be appointed by bishops only 
per modum actus, 1271; power of 
bishop and pastor and of religious 
superiors to dispense from obliga- 
tion, 1272; time of obligation from 
midnight to midnight, 1273; holy- 
days of the Universal Church; ex- 
cept where special arrangement has 
been made by the Holy See, par- 
ticular laws on holydays abclished, 
App. III, 3, i; holydays to be ob- 
served in the United States, 1274; 
obligation of hearing Mass and 
resting from servile work, 1275; 
judicial acts on holydays forbidden 
but not invalid, 1616. 

Holy Office, Congregation of the: 
general duties, 191; proceeds in 
trials according to its own laws, 
1548; cases of the Pauline Privi- 
lege reserved to it, 1868; also the 
impediments of disparity of cult 
and mixed religion, 1869. 

Holy Oils: See Oils, Holy. 

Holy See: meaning of the term, 7; 
benefices which are reserved to it, 
1446; its power to reduce, mitigate 
and commute last wills for just and 
necessary cause, 1510; censures 
are reserved to it simpliciter, spe- 
cialt_ modo, or specialissimo modo, 
2086; censures reserved to it may 
not be reserved also by the Ordi- 
nary, 2088; it alone can issue a gen- 
eral local interdict, and a personal 
interdict on the people of a diocese 
or state, 2110. 

Hospitals: jurisdiction of hospital 
chaplains in marriage cases, 1101; 
power of the local Ordinary to 
erect hospitals, 1482; foundation 
and administration, 1483; bish- 
op’s right of visitation, 1484; bish- 





INDEX 687 


op’s rights in hospitals which are 
exempt by Apostolic privilege, 
1485; bishop’s duty to see that the 
intentions of the founder are fully 
complied with, 1486. 

Hosts: must be of wheaten flour and 
fresh, 717, 1300, App. III, 31, ¢; 
leavened or unleavened, 718; must 
be fresh and renewed frequently, 
1300. 

Hunting: venatio clamorosa forbidden 
to clerics, 107; quiet hunting may 
be forbidden by bishop, App. III, 
reget 


Ignorance: of invalidating or inhabil- 
itating laws does not excuse from 
invalidity of the actions, 14; does 
not excuse from irregularities and 
impediments, 951; ignorance of 
the law lessens imputability, 2034; 
ignorance and other mental condi- 
tions as an excuse from penalties, 
2068-2069; absolution from cen- 
sure and sin given in ignorance is 
valid, save in cases ab homine, and 
those reserved to the Apostolic See 
specialissimo modo, 2088. 

Illegitimates: are irregular whether 
the fact is public or occult, 925; 
persons included under the term, 
926. 

Images: rules governing their expo- 
sition for veneration of the faithful, 
1306; repair and_ preservation, 
1307; special rules concerning im- 
portant images and relics, 1308; 
images not in accord with the mind 
of the Church are forbidden, 1414. 

Immigration: of priests from Europe 
and Mediterranean countries to 
America and the Philippine Islands, 
App. Ul, 7b; 

Impedient Impediments: 
pediments to Marriage. 

Impediments to Marriage: former 
laws abolished, force of the changes 
in the law, App. III, 5, c; some sub- 
ject to the Holy Office, 191; some 


see Im- 


subject to the S. Congregation of 
the Sacraments, 193; the faithful 
have the obligation to make known 
impediments, 997; obligation of 
pastor to make investigation, 
1107; procedure when doubt as 
to an impediment arises dur- 
ing proclamation of the banns, 
1000-1001; definition and kinds 
of impediments, 1006; public and 
occult impediments, 1007; new 
concept of impediments, 1008; 
authority of the Church to estab- 
lish impediments, 1009; diriment 
impediments of minor degree, 1010; 
who may grant dispensation in 
danger of death, 1011-1013, App. 
III, 41, a; dispensations in casu 
perplexo, 1014-1016; record of dis- 
pensations granted by pastor and 
other priests, 1017; dispensations 
granted in the internal forum, 1018; 
petitions for dispensations sent 
to the Holy See, 1019; dispensa- 
tions in the sacramental forum can- 
not be recorded, 1020; delegated 
power to dispense, 1021-1022; dis- 
pensations from impediments and 
legitimation of offspring, 1023; 
mistakes or fraud in application for 
dispensation, 1024, 1026; explana- 
tion of impedient impediments, 
1030; vow of virginity, 1031; vow 
of perfect chastity, 1032; vow not 
to marry (celibacy), 1033; vow to 
receive Sacred Orders, 1034; vow 
to embrace the religious life, 1035; 
dispensation from the impediment 
of these vows, 1036; impediment of 
legal adoption, 1037; adoption in 
the United States, 1038; impedi- 
ment of mixed religion, 1039; 
promises to be made by the parties 
in mixed religion, 1040; promises a 
conditio sine qua non, 1041; diri- 
ment impediments, distinction in 
divine and ecclesiastical law, 1046; 
age, 1047; age in the various states, 
1048; impotency, 1049; existing 


688 INDEX 


bond of marriage, 1050-1051; of 
disparity of cult, 1052; ‘‘ baptized 
in the Catholic Church,” explana- 
tion of the term, 1053; doubtful 
baptism considered valid in con- 
nection with impediment of dis- 
parity of cult, 1054; dispensation 
from impediment of disparity of 
cult, 1055-1057; impediment of 
major orders, 1058-1059; of sol- 
emn religious profession, 1060; of 
abduction, 1061; of crime, 1062- 
1064; of consanguinity, 1065-1068, 
App. ITI, 41, e; of affinity, 1069- 
1072; of public propriety, 1073- 
1074; of spiritual relationship, 
1075-1077; of legal relationship, 
1078. See Dispensation. 

Impediments to Ordination: 943- 
950; those simply impeded, 943; 
children of non-Catholic parents, 
944, App. III, 38, d; married men, 
945; offices and duties incompati- 
ble with the clerical state, 946; 
slaves, 947; men liable for mili- 
tary service, 948; converts, 949; 
loss of good reputation, 950. 

Implied Jurisdiction: in the Sacra- 
ment of Penance, 782. 

Imposition of Hands: in Confirma- 
tion, 680. 

Impotency: diriment impediment to 
marriage, 1049. 

Incardination: of clerics, 87; neces- 
sary papers, vicar-general may not 
grant papers without special man- 
date of his Ordinary, 88; implied 
incardination, 89; rules governing 
incardination, 90; of secularized 
religious, 558; manner of incar- 
dination, 892-893; letters of in- 
cardination, 894 incardination into 
religious community, 895. 

Indulgences: faculties of Cardinals, 
184;.use and concession subject to 
the Sacred Penitentiary, 202; con- 
cession and power of the Church to 
grant indulgences, 828; Roman 
Pontiff and those to whom he gives 


faculties may grant, 829; limit of 
power of persons inferior to Roman 
Pontiff, 830; faculty to give the 
Papal blessing, 831; Papal bless- 
ing distinct from the general abso- 
lution, 832; indulgence of privi- 
leged altar, 833-834; new indul- 
gences may not be published with- 
out the permission of bishop, 835; 
those granted by the Roman Pon- 
tiff to be submitted to the S. Peni- 
tentiary, 836; those attached to 
certain feasts, 837; transfer of 
feasts and indulgences, 838; time 
for gaining, 839; cessation of in- 
dulgences attached to churches and 
religious articles, 840, App. III, 
3, €; conditions for gaining indul- 
gences, 841-842; for gaining ple- 
nary and partial, 848; indulgences 
granted by bishops, 844; plenary 
indulgences can be ordinarily 
gained only once a day, 845; totes 
quoties indulgences, 846; religious 
may gain indulgences in their own 
church or oratory, 847; applica- 
tion of indulgences to others, living 
and dead, 848; Confession and 
Communion as conditions, 849; 
good works prescribed must not be 
obligatory for other reasons, but 
indulgenced prayers said as sacra- 
mental penance also gain indul- 
gence, 850; various indulgences 
may be attached to the same arti- 
cle, but by one work enriched with 
several indulgences one may gain 
only one indulgence, unless the 
good work is Confession and Com- 
munion or it is otherwise explicitly 
stated, 851; prayer for the inten- 
tions of the Holy Father, 852; 
indulgenced prayers may be said in 
any language, if translation is au- 
thorized, 853-854; confessor may 
commute good works, 855; how 
mutes are to say indulgenced 
prayers, 856; publication of books, 
summaries, papers, etc., concerning 





Se 


es 1 >). 


Se ee ee eS 


> 


: 


INDEX 


indulgences, 1403; penalties for 
those who make profit from indul- 
gences, 2180. 

Indult: religious participate in indult 
published by local Ordinary, 535. 
Infamy of Law: a canonical irregu- 
larity, crimes punishable by, 930; 
distinction between infamy of law 
and of fact, and how contracted, 


2134; effects, 2135; cessation, 
2136; disqualification following, 
2137. 


Infamy of Fact: a simple impediment 
to ordination, 950. 

Infants: unbaptized infants of 
Catholic parents may not receive 
Christian burial, 1211. 

Inhability: during inhability of bishop 
the vicar-general governs the dio- 
cese, 311. 

Injunction: against new enterprises 
and for obtaining security against 
danger to one’s property, 1644— 
1645. 

Injury, Verbal: penalties, 2210. 

Innocent Persons: belonging to an 
interdicted district, community or 
college and the reception of the 
sacraments, 2117. 

Insanity: a canonical irregularity, 
928. 

Insignia: custom of wearing the in- 
signia of Third Orders and con- 
fraternities, 601; insignia and 
flags of secular societies admitted 
inside the churches, 1262, App. 
III, 46, a. 

Institutions of Charity: subject to the 
S. Congregation of the Council, 
194; power of local Ordinary to 
erect such, 1482; foundation and 
administration, 1483; bishop’s right 
of visiting even those attached to a 
religious house, 1484; bishop’s 
rights to supervision of finances of 
charitable institutes or works, even 
those that are exempt by Apostolic 
privilege, 1485; bishop’s duty to 
see that the intentions of the 


689 


foundation are fully complied with, 
1486. 

Instruction, Religious: even exempt 
religious bound to give instruc- 
tion ordered by the bishep in their 
monastery churches, 528; pastor’s 
duty to give instruction in prepara- 
tion for Penance and Confirma- 
tion, 1350; pastor’s duty to give 
instruction on Sundays and holy- 
days of obligation, 1351; pastor 
may delegate other priests, 1352; 
duties of parents and guardians 
with regard to instructing their 
charges, 1353; special department 
of Christian Doctrine established 
at the 8. Congregation of the Coun- 
cil; 1354, 

Intention: declaration of intention 
necessary prior to reception of 
orders, 957. 

Interdict: definition, 2109; what au- 
thorities can issue, 2110; what is 
forbidden by local interdict, 2111; 
what services are allowed under a 
general local interdict, 2112; con- 
sequences of local particular, 2113; 
extent of general and particular 
local, 2114; interdict on a com- 
munity or college, 2115; person- 
ally interdicted individuals, 2116; 
innocent individuals in local inter- 
dict and in interdict on a legal 
body, 2117; whether an interdict 
on a place or a body of men is a 
censure or merely a vindicative pen- 
alty, 2118; interdict ab ingressu 
ecclesi@, 2119; personal interdict 
incurred by one responsible for a 
local, 2193. 

Interest: not per se illicit, 1536. 

Interpretation of Canon Law: au- 
thoritative, 15; private, 16; laws 
enacting penalties to be inter- 
preted in the restrictive sense, 16. 

Interpreter: may be employed in 
making sacramental confession, 
821; in marriage ceremony, 1093; 
employed in judicial procedure 


690 INDEX 


where one party is ignorant of the 
language, 1618. 

Interruption: of the novitiate, 458- 
460; of divine services when a 
crime which pollutes the church is 
committed, 1214. 

Intervals: to be observed in confer- 
ring orders, 919-920. 

Investment: of religious, 413-416; of 
other ecclesiastical goods of legal 
persons, 1516. 

Invocative Blessings: 
1189. 

Irregularity: an impediment to en- 
trance into clerical state, 924; ex 
defectu, 925; illegitimacy, 926; 
bodily defect, 927; epilepsy, in- 
sanity, diabolical possession, 928; 
bigamy, 929; infamy of law, 930; 
judge who pronounced death sen- 
tence, 931; executioner and his 
assistants, 932; irregularity arising 
from crime, 933; apostates, here- 
tics and schismatics, 934; recep- 
tion of Baptism from non-Catho- 
lics, 935; attempt at certain for- 
bidden marriages, 936; murder 
and abortion, 937-938; mutilation 
and attempted suicide, 939; prac- 
tice of medicine or surgery by 
clerics, if death results, 940; abuse 
of Sacred Orders, 941; conditions 
necessary to incur irregularity ex 
delicto, 942; dispensations from, 
956. See Impediments to Mar- 
riage and Impediments to Ordina- 
tion. 

Irremovable Pastor: appointment, 
326-328; appointment in the 
United States, 330, 334-336; man- 
ner of procedure in removal, 1987— 
1996; distinction between irre- 
movable and removable, only ap- 
peal from decision of removal by 
bishop’s court is to the Holy See, 
1987; reasons justifying removal, 
1988-1989; bishop may, after 
consulting two of the examiners, 
request resignation, giving reasons 


definition, 


for the request, 1990; if the pastor 
evades receipt of invitation, App. 
III, 75; acceptance of invitation 
and defense of the pastor, 1991; ef- 
fects of acceptance by the pastor, 
1992; pastor may attack reason 
mentioned for removal, and bishop 
may, after consulting the exam- 
iners, grant him a respite to pre- 
pare proofs, 1993; recourse from 
first decision of removal must be 
within ten days, 1994; bishop 
must make provision for removed 
pastor, 1995; removed pastor must 
vacate parochial residence as soon 
as possible, 1996; recourse to 
Holy See against final decree of 
removal, App. III, 74; manner of 
procedure against pastors associ- 
ating with women, 2011. 


Judge: appointment, powers and 
office, 1563-1569; may not refuse 
his services to anyone who legiti- 
mately applies to him, 1590; com- 
petency, 1591-1592; may not try 
a case in which he is interested be- 
cause of consanguinity, affinity, 
guardianship, trusteeship or friend- 
ship, 1593; exception taken to the 
judge, 1594-1596; shall expedite 
all cases, 1599; power with regard 
to suspension of execution of an 
ordinary penalty inflicted in a 
condemnatory sentence, 2129. See 
Trials. 

Jurisdiction, Ecclesiastical: is of 
Divine institution for the internal 
and external forum, 149; ordinary, 
150; delegated and subdelegated, 
151; one delegated by the Holy See 
may subdelegate, delegate ad uni- 
versalitatem negotiorum, 152; in- 
terpretation of jurisdiction, 153; 
exercise, 154; voluntary, 155; of the 
internal and external forum, 156; 
exceeding the mandate of juris- 
diction, 156; jurisdiction from 
higher superior, 157; multiple del- 





ee ee ee eee 


INDEX 691 


egation, 158; cessation of ordinary 
and delegated, 159; inadvertence 
to cessation in the internal forum, 
159; cessation of ordinary juris- 
diction through loss of office, 160; 
when supplied by the Church, 161- 
162; power of Orders may not be 
delegated, 163; Cardinals have 
jurisdiction anywhere in the world, 
184; jurisdiction of the vicar- 
general, 271-272; of religious su- 
periors, 379; extent of jurisdiction 
of superiors, 380; the Church has 
exclusive jurisdiction over the mar- 
riage contract of all Christians, 980; 
acts of jurisdiction of an excown- 
municated person are illicit, and if 
he has been excommunicated by a 
condemnatory sentence, they are 
invalid, 2105; acts of jurisdiction 
of a suspended cleric are either in- 
valid or illicit, 2125. 

—, Episcopal: definition, 241; as- 
sumption of jurisdiction, 245; in 
spiritual and temporal affairs, dis- 
cipline of faith and morals, 247. 
See Bishop. 

Jurisdiction in the Sacrament of 
Penance: definition, 771; two- 
fold, ordinary and delegated, 772; 
persons who have ordinary, 773; 
pastors cannot delegate, App. III, 
34, a; cessation of jurisdiction, 
774; ‘jurisdiction of Cardinals, 
bishops, and priests, 775; dele- 
gated, 776; delegated in clerical 
exempt organizations, 777; for 
confessions of Sisters, 778; exam- 
inations for, 779-780; limitation 
of delegated jurisdiction, 781; man- 
ner of granting delegated jurisdic- 
tion, tacit and implied, 782; revo- 
cation and suspension, 783-785; 
extent, 786; in danger of death, 
787; on the ocean, 788; declara- 
tion on faculties to hear confes- 
sion on the ocean, App. III, 34, b. 


Key: chancellor holds key to dio- 


cesan archives, 279; two keys for 
opening secret diocesan archives, 
280-281; priest responsible for key 
of tabernacle, 1297. 


Knights of Pythias: forbidden society, 


2190. 


Knowledge: required of religious for 


reception of Orders, 498-499; for 
secular candidates, 918; necessary 
for the reception of Baptism, 646; 
knowledge gained in the confes- 
sional inviolable, 795-796; knowl- 
edge of Christian doctrine for re- 
ception of Sacrament of Matri- 
mony, App. III, 40; knowledge of 
the object of marriage contract, 
1080, App. III, 42, a. 


Laity: distinct from the clergy, 83; 


right to services of the clergy; may 
not wear clerical garb, 581. See 
Laymen. 


Lamp: to burn before the tabernacle, 


olive oil to be used if possible, 
1299. 


Last Sacraments: canons of cathedral 


chapter give last rites to Ordinary 
of the diocese 290; pastor to all 
persons actually staying in his 
parish, except in clerical religious 
communities, 338; superior has 
right to administer in clerical re- 
ligious houses, 391. See Unction, 
Extreme. 


Late Sententic: meaning of term, 


25; definition of penalties late sen- 
tentiew, 2052; circumstances which 
excuse from such penalties, 2053; 
imposition of such penalties, 2057; 
declaration of such penalties, 2059; 
when inflicted by a special pre- 
cept, 2061; bishops exempt from 
suspension and interdict late sen- 
tentte, unless explicitly named, 
2066; ignorance which excuses 
from such penalties, 2068-2069; 
children excused from such penal- 
ties, 2070; automatic effect of such 
penalties, 2072; faculties of the Or- 


692 


dinary to remit them, 2077-2079; 
censures latw sententie to be in- 
flicted only with moderation and 
great caution, 2080; to incur such 
a censure, the transgression of the 
law or precept suffices, 2081; such 
censures are not reserved, unless 
the law or precept explicitly states 
so, 2086. 

Latin Rite: laws of the Code obliga- 
tory only for Latin Catholics, 1; 
liturgical books of the Latin Rite, 
628. 

Law: general principles of Canon 
Law, 1-63; 
lished prior to the Code remain in 
force, 2; particular and general 
laws contrary to the Code are abol- 
ished, 6, 22; former laws enacting 
censures and other penalties not 
contained in the Code are abol- 
ished, 6; promulgation of terri- 
torial and personal laws, 8; laws of 
the Code are not retroactive, un- 
less the contrary is explicitly 
stated, 10, App. III, 5, a; invali- 
dating and inhabilitating laws are 
those only which are explicitly de- 
clared such, 11; general laws bind 
Catholics everywhere, but par- 
ticular laws only those who have a 
domicile or quasi-domicile in the 
particular territory, 12; lawsuits, 
92; promulgation of laws of bishops, 
246. See Trials. 

Laymen: cannot acquire by prescrip- 
tion those spiritual rights for which 
they are incapacitated by the 
divine or ecclesiastical law, 1498. 
See Laity. 

Legacies: for the education of clerics, 
1378. See Will, last. 

Legal Adoption: impediment to mar- 
riage, where accepted by the civil 
law, 1037; in the various states of 
the United States, 1038. 

Legal Persons: definition, 76; rules 
governing their actions, 77-82. 

Legates (of the Roman Pontiff): 


liturgical laws pub-. 


INDEX 


rights and duties, 208; term of 
office, precedence and = powers 
209. 

Legitimacy: how it is determined, 
1147-1149. 

Legitimation: of offspring by dis- 
pensation of diriment impediment, 
1023; of children by subsequent 
marriage, classes of illegitimates, 
1150. 

Liberty: penalties for those inter- 
fering with the liberty and rights 
of the Church, 2187; penalties 
for offenses against the liberty of 
others, 2209; penalty for inter- 
ference with the liberty of con- 
science by superioresses, 2270. 

Life: penalties for offenses against, 
2209. 

Linens: 
1325. 

Litanies: must be chanted as found 
in the approved formulas, 854, 
App. IIT, 34, d; litanies not ap- 
proved by the Holy See may not 
be said by a number of people to- 
gether in a church or public ora- 
tory, 1286; local Ordinary must 
attest that reprints agree with the 
approved editions, 1405. 

Little Office of the B. V. M.: public 
recital must be in Latin, but the 
vernacular may be used in private, 
854. 

Liturgical Books: of the Latin Rite, 
628; local Ordinary must attest 
that reprints agree with the ap- 
proved editions, 1405. 

Living, Mass for the: 711-713. 

Living Rooms: may not be built 
over the church, 1203. 

Loans: sacred objects shall not be 
loaned for purposes repugnant to 
their nature, and goods of the 
Church may not be pledged or 
mortgaged, or debts contracted, 
without permission of the legiti- 
mate superior, 1531. 

Loss: of ecclesiastical office, 142. 


washing of Mass linens, 





INDEX 693 


Mandans: the principal author of an 


offense, 2042. 


Mansionarii: have no vote in Chap- 


ter of Canons, 286, App. III, 15, k. 
Manuscripts: of religious, 506; clerics 
may not publish manuscript with- 
out permission of local Ordinary; 
if one refuses permission another 
may not be asked without inform- 
ing second Ordinary of refusal of 
first, 1397; laymen must obtain 
permission of local Ordinary for 
certain books, 1399. 


Maronite Rite: celibacy in, 1058. 
Marriage: when dispensations to im- 


pediments are valid, 34; clerics in 
major orders cannot validly con- 
tract marriage, 101; impediments 
of disparity of cult and mixed re- 
ligion and the Pauline Privilege 
subject to the Holy Office, 191; 
other impediments subject to the 
5. Congregation of the Sacraments, 
193; pastor’s right to assist at 
marriage, 338; those who attempt 
forbidden marriage are irregular, 
936; nature and dignity of the 
Sacrament, 975; purpose, 976; its 
essential characteristics, 977; pre- 
sumption of law is in favor of the 
validity of marriage, 978; defini- 
tion of matrimonium ratum, con- 
summatum, legitimum, and puta- 
twwum, 979; marriage contract gov- 
erned by the divine and canon 
law, 980; marriage of unbaptized is 
subject to the civil power, 981; 
nature of marriage engagement, 
982; force of the engagement and 
requirements of law, 983; pre- 
requisites and conditions for valid- 
ity of engagement, 984; engage- 
ment must be in legal form, 985; 
conditions for breaking engage- 
ment, 986; broken engagement no 
impediment, 987; party breaking 
engagement is free to marry an- 
other, 988, App. IfI, 40; injured 
party may sue for damages in case 


of unlawful breach, 989; pastor 
must instruct the people on mar- 
riage, 990; of the things that pre- 
cede marriage, 991; manner of in- 
vestigation, 992; proof of baptism, 
993; publication of the banns, 
994-999; course of action in doubt- 
ful impediment, 1000-1001 ; mar-, 
riage of vagi, 1002; instruction of 
young people, 1003; children for- 
bidden to marry despite reasonable 
objections of parents, 1004; an- 
nouncement of marriage in Amer- 
ican civil law, 1005; impediments, 
see Impediments to Marriage; 

permission to remarry on_pre- 
sumed death of consort, 1025, 
App. III, 41, d; mistake or fraud 
in application for dispensation, 
1026; execution of dispensation 
of the Holy See, 1027; fees for dis- 
pensations, 1028; Papal indult to 
be mentioned in dispensation by 
delegated power, 1029; marriage 
ceremony outside the Church, 
1042; duties of bishops and pas- 
tors concerning mixed marriages, 
1043; marriage of a Catholic with 
a renegade, 1044; with unworthy 
Catholic, 1045; matrimonial con- 
sent, 1079; rational marriage con- 
sent presupposes knowledge of the 
object of the marriage contract, 
1080, App. III, 42, a; error vitiat- 
ing matrimonial consent, 1081; 
theoretical errors on the nature 
of Christian marriage, 1082; knowl- 
edge or opinion that marriage is 
invalid, 1083; matrimonial con- 
sent presumed in law to be in har- 
mony with the nature of the con- 
tract, 1084; consent vitiated by 
force and fear, 1085-1088, App. 
ITI, 42, b; consent to be given in 
each other’s presence, 1089-1090; 
marriage by proxy, 1091; regula- 
tions for such a marriage, 1092; 
marriage through an interpreter, 
1093; conditional consent of the 


694 


parties, 1094-1908, App. ITI, 42, c; 
form of the marriage contract, 
1099; requisites for valid assist- 
ance of bishop and pastor, 1100- 
1102; delegation of priest to assist, 
1103-1105; assistance of priests 
who temporarily take the place of a 
pastor, 1106, App. ITI, 43, a; their 
right to delegate other priests, 
App. III, 43, b; civil law of the 
United States on assistance of 
priests, 1109; canonical require- 
ments for licit assistance, 1110- 
1118; exceptions from canonical 
form of marriage, 1119; in dan- 
ger of death, 1120; in absence 
of priest, 1121-1124; persons 
bound to canonical form, 1125- 
1128; rites of marriage, 1129- 
1131; record, 1132-1134; mar- 
riage of conscience, 1135-1138; 
time of celebration, 1139, App. ITI, 
44; place of celebration, 1140- 
1142; consequences of marriage, 
1148; mutual rights of husband 
and wife, 1144-1145; joint duties 
of married couple towards their 
children, 1146; rules by which the 
legitimacy of the children is deter- 
mined, 1147-1149; legitimation by 
subsequent marriage, 1150; sep- 
aration of married persons, 1151- 
1175; dissolution of the marriage 
bond, 1151-1152; the Pauline 
Privilege, 1153-1161; separation 
of married persons, 1162-1165; 
various causes of separation, 1166- 
1173; custody of the children after 
separation, 1174, separation by 
mutual agreement, 1175; valida- 
tion of marriage, 1176-1177; val- 
idation not effected by abrogation 
of impediments, App. III, 5, ¢; 
validation of marriage made in- 
valid by lack of consent, 1178- 
1179; validation of marriage made 
invalid by defect of form, 1180; 
the sanatio in radice, 1181-1185; 
second marriages, 1186; local Or- 


INDEX 


dinary may demand only a small 
offering to cover expenditures of the 
chancery office in issuing dispensa- 
tions, 1496; penalty for contract- 
ing mixed marriage without dis- 
pensation, 2231. 


Married Men: impeded from ordina- 


tion, 945; impeded from entering 
religious organizations, 431, 4. 


Martyrs: process of beatification of 


various martyrs must be treated 
separately, unless they suffered 
in the same persecution and in the 
same place, 1906. 


Mass: privileges of Cardinals with 


regard to the Mass, 184; applica- 
tion by bishop for the people, 250; 
days of application for people, 251; 
application by pastor, 344-345; 
priest of one Rite may not say Mass 
in another Rite, 628; the celebrant, 
697; concelebration, 698; admis- 
sion of strange priest to say Mass, 
699; necessary letters of strange 
priest (Celebret), 699-702; obliga- 
tion of every priest to say Mass, 
703; one Mass a day, 704; three 
on Christmas and All Souls’ day, 
705; priest who has permission to 
say a votive Mass every day, may 
say three Masses on All Souls’ and 
Christmas, App. III, 31, f; bina- 
tion, 706; confession of mortal 
sins before saying Mass, 707-708; 
Eucharistic fast, 709; exemption 
from fast, 710, App. ITI, 31, a; for 
whom Mass may be applied, 711; 
Mass for the dead, 712; for the 
living, 713; preparation and 
thanksgiving, sacred vestments, 
714; when assistant priest is per- 
mitted, 715; Mass should not be 
said without a server, 716; people 
answering in place of server, App. 
III, 31, d; rites and ceremonies, 
pure wheaten bread and wine 
mixed with water to be used, 717; 
priest must follow own Rite, 718; 
people may not read secrets, Canon 





INDEX 


and form of consecration with a 
loud voice, App. III, 31, d; one 
species only never to be conse- 
crated, -719; time and place of 
Mass, 720-722; limited right of 
bishop to allow Mass in private 
house, App. III, 31, g. See Sti- 
pends, Foundations. 

Mass, Conventual: of Chapter of 
Canons, 300; of religious com- 
munities, 525, App. III, 23, b. 

Master of Novices: may not hear 
confessions of subjects, 470; neces- 
sary qualifications, 463; election, 
464; duties, 465; must be relieved 
of all duties incompatible with 
office, 466. 

Materia Libera: (in the Sacrament 
of Penance): sins which may, but 
need not be confessed, 820. 

Matrimonial Cases (of litigation): 
those between baptized persons be- 
long by proper and exclusive right 
to the ecclesiastical judge, 1866; 
mere civil consequences of mar- 
riage to the civil court, 1867; cases 
of rulers of states, their sons and 
daughters, 1868; dispensations and 
declarations of nullity, 1868; juris- 
diction of local judge, 1869; aid of 
Church in cases where declaration 
of nullity is sought in her courts, 
1870; competent court in case of 
abandonment, 1871, App. III, 70; 
cases wherein lack of consent is at- 
tested, 1872; constitution of the 
tribunal, 1873; duties of defensor 
vincult, 1874; right of the defensor 
vinculi, 1875; persons who have the 
right to attack a marriage and pe- 
tition for dispensation of uncon- 
summated marriage, 1876-1879; 
proofs offered in such cases, 1880- 
1882; bodily inspection, 1883- 
1887; the publication of the proc- 
ess, closing of the evidence and sen- 
tence, 1888-1890; of appeals, 
1891-1894; App. III, 71, a-b; of 
the cases excepted from the formali- 


695 


ties of an ordinary trial, 1895-1898, 
App. III, 72; appeal from the dec- 
laration of nullity, 1899-1900; pro- 


cedure to prove matrimonium 
ratum non consummatum, App. 
III, 73. 


Matrimonium Ratum non Con- 
summatum: dispensation always 
includes the dispensation from the 
impediment of crime committed 
by adultery with the promise or 
attempt of marriage, 1025; pro- 
cedure to prove, App. III, 73. 

Medicine, Practice of: forbidden to 
clerics, 108; clerics who practice 
medicine or surgery incur irregu- 
larity when death results, 940. 

Medicinal Penalties: definition, 2051. 
See Penalties Ecclesiastical. 

Mendicants: collection of alms by, 
536-538. See Alms. 

Mensa Communis: canonical title 
for ordination of religious of per- 
petual simple vows, 923. 

Mensa Episcopalis: administra- 
tion by the bishop, is considered 
a legal person in Canon Law, 1478. 

Metropolitan: see Archbishop. 

Midnight Mass: celebration of, and 
distribution of Holy Communion 
at, 720. 

Military Service: clerics not liable 
for, 93; clerics may not volunteer 
for military service without permis- 
sion of the Ordinary, 112; pro- 
fession of novices liable for military 
service, 480; former laws for 
religious lable for military ser- 
vice not abolished, App. III, 4, b; 
annual vows and military service, 
480, App. III, 22, c; ownership of 
money paid for military service of 
religious, App. III, 22, e; men 
liable for military service impeded 
from ordination, 948, App. ITI, 38, 
d. 

Minister: the priest is ordinary min- 
ister of Solemn Baptism, 633; the 
deacon is the extraordinary min- 


696 | INDEX 


ister, 634; ordinary and extraordi- 
nary minister of Confirmation, 682- 
684; ordinary and extraordinary 
minister of Orders, 881-883; min- 
isters of the Sacraments of Bap- 
tism and Confirmation contract 
spiritual relationship, 1075-1077. 

Ministry: duties of religious superiors 
in regard to the sacred ministry, 
522; ministry in churches of re- 
ligious women, 523; in parochial 
churches attached to religious 
houses, 524; the Divine Office in 
choir, 525; obligation of religious 
individuals to recite Divine Office, 
526; of secular clerics in major 
orders, 104. 

Minor: definition, 66. 

Miracles: judgment on the miracles 
of a servant of God in the process 
of beatification, 1969-1973. 

Missa Pro Populo: in Vicariates 
and Prefectures Apostolic, 229; 
application by the bishop, 250; 
days of application, 251; pastors 
in the U. S. A. also bound to 
apply, 344; declaration on doubt 
whether holders of certain chapels 
are pastors, App. III, 16, d; priest 
temporarily in charge of several 
parishes, App. III, 16, e. 

Missionaries: concessions regarding 
the Eucharistic fast, 710. 

Missions: to be held in every parish 
at least once in ten years, 1364; 
local Ordinaries should interest 
themselves in missions for non- 
Catholics, 1365. 

Mistakes: about impediments in 
application for dispensation from 
consanguinity and affinity, 1024; 
application for’ dispensation from 
impediment of minor degree is not 
invalidated by a positive lie or by 
concealment of truth, 1026. 

Mixed Marriage: penalty for con- 
tracting a mixed marriage before 
non-Catholic minister, 2166-2167; 
special law for Germany abolished, 


App. III, 3, f; assistance of priest 
when promises are refused, App. 
ItI, 3, g. See Impediments to 
Marriage. 

Mixed Religion: an impediment to 
marriage, conditions of dispensa- 
tion from, 1039; required prom- 
ises, 1040; are the promises a 
condition without which the dis- 
pensation cannot validly be 
granted? 1041; parties are forbid- 
den to approach a non-Catholic 
minister to give or to renew matri- 
monial consent, 1042. 

Modernism: oath against and other 
regulations concerning Modernism 
remain in force until Holy See shall 
decide otherwise, 6, App. ITI, 4, a; 
oath against Modernism in clerical 
organizations, 386. 

Moniales: definition 365. See Nuns 
and Religious. 

Monstrosities: always to be bap- 
tized at least conditionally, 641. 

Month: in law, 24. 

Monuments: in cemeteries, 1241; 
memorial tablets in churches and 
crypts, App. ITI, 46, b. 

Moral Persons: how constituted, 76; 
rules governing their actions, 77- 
82; duties of moral persons as 
pastors, 326; to be represented in 
court by the rector or adminis- 
trator, 1624. 

Motu Proprio: valid though truth 
was suppressed in peitition, but 
invalid, if person was incapable 
of receiving the favor, 34. 

Multiplication: of irregularities and 
impediments of ordination, 952; 
multiple consanguinity, 1068; mu!- 
tiple affinity, 1069; of irregular- 
ities and impediments, 952; of 
censures, 2085. 

Munus a Manu: a gift of money 
or movable or immovable goods, 
615. 

Munus ab Obsequio: a gift made 
in the form of a service, 615. 





EE 


ee eS ee eee 


INDEX 


697 


Murder: irregularity of those guilty | Novice (in religious organizations): 


of, 937; penalties, 2209. 

Music: in the Church, 1291. 

Mutes: manner of saying indulgenced 
prayers, 856. 

Mutilation: those who mutilate 
themselves are irregular, 939. 


Name: name of a saint should be 
given in baptism, 654. 

Native Clergy: duties of vicars and 
prefects Apostolic with regard to, 
228. 

Ne Temere: Decree (of April 19, 
1908): concerning the form of 
marriage, 1099. 

Nomination: right of Supreme Pontiff 
to nominate bishops, 241; right of 
local Ordinary to nominate pastors, 
329; penalty for abuse of right of, 
2249. 

Non-Catholics: the administration 
of the Sacraments to, 624-626; 
baptism conferred by, 627; their 
children impeded from ordination, 
944; use of sacramentals by, 
1190, App. 45, a; Catholics for- 
bidden to take an active part in 
worship of non-Catholics, 1284 
1285; excommunication incurred 
by attempted marriage before non- 
Catholic minister, 2166-2167. 

Non-Vacant: penalty for accepting 
non-vacant benefice, office or dig- 
nity, 2251. 

Notaries: qualifications and duties of 
notaries of the diocesan curia, 277— 
278; major superiors in clerical 
exempt organizations of religious 
may appoint notaries for affairs of 
the organization, 380; notaries in 
causes of beatification and canon- 
ization, 1913-1914; must be ap- 
pointed for every ecclesiastical 
trial, and must draw up the acts 
and subscribe to them, 1574; duties 
in all trials, laymen may be ap- 
pointed, but in criminal cases only 
priests, 1983. 


see Novitiate and Religious. 

Novices, Master of: see Master of 
Novices. 

Novitiate: master of novices may 
not hear confessions of novices 
399; conditions for admission into, 
431; illicit reception, 432; recep- 
tion of converts, 433; liberty of 
entrance, 434; married persons, 
435; reception of former religious, 
436; reception of secular clerics, 
437; conditions for licit reception 
of cleric in major orders, 438; re- 
ception of those burdened with 
debt and illegitimates, 439; right 
of admitting, 440; testimonials of 
candidates, 441; proof of recep- 
tion of Baptism and Confirmation, 
442; testimonials of Ordinaries of 
places of study, 443; testimonials of 
rectors of collegia, 444, App. III, 
21, c; testimonials of Ordinaries 
of places of residence, 445; man- 
ner of giving testimonials, 446; 
content of testimonials, 447; dowry 
of religious women, 448; acquisi- 
tion of dowry, 449; investment of 
dowry, 450; return of dowry, 
451; local Ordinary must be in- 
formed of reception of candidates 
into communities of women, 452; 
examination of such candidates by 
Ordinary, 452; beginning of noviti- 
ate, 453; erection of house of novi- 
tiate, 454; personal conditions for 
valid novitiate, 455, App. III, 21, b; 
reckoning of time of novitiate, 456, 
App. III, 21, e; second year, 457; 
App. III, 21, a; interruption of 
novitiate, 458-460; dismissal of 
novice, 460; habit of novices, 461; 
novitiate of one class invalid for 
another, 462; novice master, see 
Master of Novices; segregation of 
novices, 467; purpose of novitiate, 
novices may not study the liberal 
arts intensively, 468; confession in 
novitiate, 469-470; rights and 


698 


privileges of novices, 471, App. ITI, 
21, f; profession in danger of 
death, 472, App. III, 21, g; tem- 
poral goods of novices, 473-475, 
App. III, 21, h; no compensation 
may be asked for expenditures of 
upkeep, 476; freedom to leave and 
dismissal, 477; religious profession 
of novices, 478-480; requisites for 
validity of profession, 478, App. 
III, 22, a; temporary and _ per- 
petual vows, 481-482; formal- 
ities of profession, 483-485; time 
of profession, 484-485, App. III, 
22, d; rights and duties of tem- 
porarily professed, 486-487; tem- 
poral goods of the professed, 488- 
489; ownership of money paid to 
professed for military service, App. 
III, 22, e; solemn profession, 490—- 
491; burial of novices, 1248; pen- 
alty for unlawful admission to 
novitiate or to religious profession, 
2267. 

Nullity of Acts: court actions arising 
from, 1646-1648, App. III, 65. 

Nuns: simple and solemn profession, 
App. III, 3, b; nuns whose solemn 
vows, have been reduced to simple 
vows, App. ITI, 18, e-d; enclosure, 
see Enclosure; funeral services, 
1257; See Moniales and Reli- 
gious. 

Nuptial Blessing: pastor’s duty with 
regard. to, 1129; when allowed, 
1130; closed seasons, 1139, App. 
III, 44; forbidden during a local 
interdict, 2112. 


Oath: the oath against Modernism, 
6, 386; definition of oath, 13837; 
obligation, 1338; nature of prom- 
issory oath, 13839; cessation of 
promissory oath, 1340; annulment, 
dispensation, commutation of 
promissory oath, 1341; interpre- 
tation, 1342; those who must take 
the oath in ecclesiastical trials, 
1600; manner of taking the oath, 


INDEX 


1601; oath to be taken by exam- 
iners, consultors and notaries at 
the beginning of a trial, violators 
of oath to be punished by the Ordi- 
nary, 1984; penalty for Cardinals 
who refuse to take the prescribed 
oath, 2253. 

Obedience: to the Ordinary, 97; ob- 
ligation of religious to obey Su- 
preme Pontiff by vow of obedience, 
377; to local Ordinaries, 378; ob- 
ligations of vow of obedience of 
religious, 503; religious bound to 
obey bishop with regard to public 
worship, 528. . 

Obligations: of exterior conduct of 
clerics, 95; of spiritual retreat, 96; 
of obedience to the Ordinary, 97; 
to study, 98; of examination, 99; 
to attend diocesan conferences, 
100; of celibacy, 101; concerning 
women, 102; duties and obligations 
of life and conduct of the clergy, 
103-114; obligations of pastors, 
341-348; of superiors, 386-387; 
of religious with regard to pa- 
rochial churches connected with 
the religious house, 524; of the 
bishop to administer Confirma- 
tion, 687; of all priests to say Mass 
several times a year, 703. 

Obstruction: in the government of a 
diocese, 311. 

Occult Offenses: punished by the 
Ordinary by infliction of suspen- 
sion ex informata conscientia, 2015- 
2024. See Offenses. 

Ocean: special permission required 

‘to say Mass on ocean, 721; juris- 
diction for hearing confessions on 
the ocean, 788, App. III, 34, b. 

Odd Fellows: forbidden society, 
2190. 

(conomus, Diocesan: election and 
duties, 314-315, 318; removal, 319. 

— in religious organizations: 393- 
397. 

(@cumenical Council: 
General. 


see Council, 





INDEX 699 


Offenses: nature and division, 2025- 
2030; imputability, 2031-2032; 
disabilities affecting the mind, 
2033; ignorance of the law, 2034; 
omission of due care, 2035; liability 
of minors, 2036; physical violence 
excuses from liability, 2037; lia- 
bility for acts done in passion, 
2038; special aggravating circum- 
stances, definition of recidivus, 
2039; liability of codperators, 
2040; liability of conspirators, 
2041; liability of the mandans, 
2042; accomplices with limited 
liability, 2043; negative codpera- 
tors, 2044; when accomplices are 
liable for the offense after its com- 
mission, 2045; consequences of 
commission of an offense, penal- 
ties ferende sententie, criminal and 
civil actions, 2046; those who are 
liable for the expenses and dam- 
ages caused by an offense, 2047; 
attempted offense and its guilt, 
2048; liability for attempted of- 
fense, 2049; penalties for offenses, 
see Penalties, ecclesiastical; rem- 
edies for offenses, see Remedies, 
Penal; only external, grave, con- 
summate and obstinate offenses are 
punished with censures, 2081; 
offenses against religion, 2170; 
illegal bination and breaking the 
natural fast, 2171-2172; usurpa- 
tion of priest’s functions, 2173- 
2175; biasphemy and _ perjury, 
2176; offenses in violation of the 
laws concerning Mass _ stipends, 
2177; superstition and _ sacrilege, 
2178; making and spreading of 
false relics, 2179; profit-making 
through indulgences, 2180; viola- 
tion of corpses and graves, 2181; 
violation of churches and ceme- 
teries, 2182; offenses against eccle- 
siastical authorities, 2183-2204; 
offenses committed against the laws 
on the election of the Supreme Pon- 
tiff, 2183; disobedience of orders of 


the Roman Pontiff or of the proper 
Ordinary, conspiracy, 2184; appeal 
from the law and commands of the 
Roman Pontiff to an Gicumenical 
Council, 2185; recourse to the 
civil power from letters or acts of 
the Apostolic See or its legates, 
2186; interference with the liberty 
and rights of the Church, 2187; 
joining the Freemasons and other 
similar societies, 2188-2191; pas- 
tors and other priests who incite 
the people to interfere with eccle- 
siastical jurisdiction, 2192; unau- 
thorized absolution from excom- 
munication, communication with 
an excommunicatus vitandus, 2193; 
violation of censures, liability for 
interdict on a place or a legal body, 
2193; violation of the laws of 
deprivation of Christian burial, 
2194; obduracy in censures, 2195; 
violation of the privilege of the 
ecclesiastical forum, 2196; viola- 
tion of the law of enclosure, 2197; 
violation of the privilegium canonis, 
2198; verbal injury to clerics, 
2199; infringement on the goods 
and rights of the Roman Church, 
2200; usurpation and detention of 
temporal ecclesiastical goods and 
property, 2201; illegal alienation 
of ecclesiastical goods, 2202; un- 
just withholding of goods from 
pious institutions, 2203; refusal of 
legitimate contributions and taxes, 
2204; offenses, life, liberty, prop- 
erty, good repute and Christian 
morality, 2205-2214; abortion, sui- 
cide and attempted self-destruc- 
tion, 2205; duel, 2206; unjust 
coercion of persons to embrace 
the religious or clerical state, 2207; 
abduction, 2208; verbal injury to 
others, 2210; bigamy, 2211; of- 
fenses against chastity, 2212-2214; 
of forgery and other falsehoods, 
2215-2217; forgery of Papal doc- 
uments, 2215; fraud in petition 


700 


for rescripts, 2216; forgery of eccle- 
siastical documents and records, 
2217; false accusation of solicita- 
tion against a confessor, 2218-2219; 
offenses committed in the admin- 
istration or reception of Orders 
and other Sacraments, 2220-2231; 
administration of the Sacraments 
to forbidden persons, 2220; at- 
tempt to administer Confirmation, 
2221; hearing of confessions with- 
out faculties, 2222; absolution of 
accomplice in sins of impurity, 
2223; solicitation to sins of impu- 
rity by priest in connection with 
confession, 2224; violation of the 
seal of confession, 2225; conse- 
cration of bishop without Papal 
mandate, 2226; simony in the ad- 
ministration or reception of the 
Sacraments, 2227; reception of 
Orders from excommunicated, sus- 
pended or interdicted prelates, 
2228; illicit conferring of Orders, 
2229; illicit reception of Orders, 
2230; mixed marriage without dis- 
pensation, 2231; of offenses against 
obligations of the clerical and re- 
ligious state, 2232-2245; refusal 
of priest to submit to the annual 
examination after ordination, 2232; 
absence from diocesan conferences, 
2233; carelessness in performance 
of rites and ceremonies, 2234; dis- 
carding the clerical garb, 2235; 
clerics engaging in forbidden 
worldly businesses, 2236;  viola- 
tion of the law of residence, 2237; 
negligence of pastor in the care of 
souls, 2238; carelessness of pastor 
in drawing up and keeping paro- 
chial records, 2239; negligence in 
office of the canon theologian and 
canon penitentiary, 2240; apos- 
tacy from religious life, 2241; 
flight from religious life, 2242; re- 
ligious profession by deceit, 2243; 
violation of the obligation of celi- 
bacy, 2244; violation of commu- 


INDEX 


nity life in religious organizations, 
2245; offenses in the conferring, 
reception and dismissal of eccle- 
siastical dignities, offices and bene- 
fices, 2246-2259; of molestation of 
voters in canonical elections, 2246; 
offenses committed in elections, 
2247; simony in conferring and 
accepting ecclesiastical offices, ben- 
efices and dignities, 2248; abuse of 
right of election, presentation and 
nomination, 2249; illicit taking 
possession of benefices, offices or 
dignities, 2250; accepting a non- 
vacant benefice, office or dignity, 
2251; illegal possession of two in- 
compatible offices or benefices, 
2252; refusal of Cardinals to take 
prescribed oath, 2253; neglect 
of bishop-elect to receive conse- 
cration in due time, 2254; unlaw- 
ful desertion of duties by clerics, 
2255; resignation of office, bene- 
fice or dignity into the hands of 
laymen, 2256; illegal refusal to 
abandon office, benefice or dignity, 
2257; neglect of abbatial blessing, 
2258; neglect of profession of 
faith, 2259; abuse of ecclesiastical 
authority or office, 2260-2270; 
offenses in connection with dioce- 
san archives, 2261; unfaithfulness 
in the custody of ecclesiastical 
records, 2262; attempted bribery 
of officials of the Curia, 2263; 
illegal exaction of taxes, 2264; un- 
lawful issuance of dimissorials dur- 
ing vacancy of bishopric, 2265; 
illicit ordination of exempt relig- 
ious, 2266; unlawful admission to 
the novitiate or to religious pro- 
fession, 2267; failure to keep dowry 
intact, and neglect to notify local 
Ordinary of reception and profes- 
sion in religious communities of 
women, 2268; interference of 
religious superiors with the 
visitation, 2269; interference by 
superiors with the liberty of 





INDEX 


conscience of their subjects, 
2270. 

Offerings: forbidden for the admin- 
istration of the Sacrament of Pen- 
ance, 631; offerings for benefit of a 
parish, 1220; votive offerings may 
not be disposed of, App. III, 59, 
‘a-b. 

Office Divine: obligation of all 
clerics in major orders to daily 
recitations, 104; obligation to 
choral recitation in religious insti- 
tutions, 525-526; obligation to 
recite office for reason of benefice, 
loss of income for neglect of this 
obligation, 1472. 

Offices, Divine: definition, 2099. 

—, Ecclesiastical: definition, 115; 
appointment to, 116; appointment 
to vacant offices, 117; bishop’s 
power of appointment, 118; qual- 
ifications in candidate, 118; office 
entailing the care of souls must be 
occupied by priest, 119; incom- 
patible offices may not be held sim- 
ultaneously, 120; appointment to 
office vacant through renunciation 
or by sentence of deprivation, 121; 
appointment to office must be in 
writing, 122; election to office, 123- 
141, see Election; loss of office, 142; 
renunciation of office, 143; tacit 
renunciation, 144; acceptance and 
rejection of renunciation, 145, 
App. III, 8, ¢; vacancy of office 
after renunciation, 146; depriva- 
tion of office, 147; transference of 
office, 148; term of office of major 
superiors, 382; office obtained only 
through appointment of ecclesi- 
astical superior, 1500; effects of 
suspension from office, 2121-2125; 
penalty for illegal possession of two 
incompatible offices or benefices, 
2252; penalty for abuse of eccle- 
siastical office or authority, 2260. 

—, Secular: clerics may not seek 
or accept secular public, 110; 
permission to accept such offices 


701 


may be given by bishop, App. ITI, 
7, e; Cardinals, archbishops, bish- 
ops may not accept or compete for 
office of senator or representative 
without permission of Holy See, 
App. III, 7, e. 

Officialis: history of office, 268- 
269; judge of episcopal court, 269; 
appointment and office, 1564; 
plea of suspicion against, 1594. 

Oils, Holy: for the administration of 
the Sacraments, blessing and re- 
newal of, 629; custody, 630; Su- 
preme Pontiff can give priests 
power to bless oleum infirmorum, 
857; oils not to be kept in private 
houses without permission of the 
bishop, 868. 

Old Discipline: rules governing mod- 
ifications of, 6. 

Option: permitted to Cardinals, 181; 
forbidden to Canons, 290, App. 


. III, 15; e-g. 
Oratory: definition and _ various 
kinds, private chapels of Car- 


dinals and bishops considered semi- 
public oratories in law, 1225; pub- 
lic oratories, 1226; semi-pub- 
lic, 1227; private, 1228; persons 
who may fulfill obligation of hear- 
ing Mass in a private oratory, 
1275. 

Orders: power of Orders may not be 
delegated, 163; power of order of 
abbots, 539; Sacrament of Orders 
separates clergy from the laity, 
871; major and minor orders, 872; 
history of the development of 
Orders, 873-880; ordinary minis- 
ter is the bishop, validity of hercti- 
cal and schismatice orders, 881; 
extraordinary minister, 882; can 
priest receive power to ordain to 
subdeaconship and priesthood? 883; 
consecration of bishop reserved to 
the Holy See, 884-886; consecrat- 
ing bishop must employ two other 
bishops to assist in the ceremony, 
887; candidates to be ordained by 


702 


their own bishop, 888; the proper 
pishop of candidate, incardination, 
889; rules determining proper bish- 
op, 890-893, App. IIT, 38, b; oath 
of residence, canonical domicile, 
890; right to establish own dom- 
icile, 891; examples of proper 
bishop in various cases, 892; in- 
cardination by reception of first 
tonsure, 893-894; letters of incar- 
dination and excardination, 894; 
incardination into religious com- 
munities, 895; prefects and vicars 
Apostolic, abbots and _ prelates 
nullius have the same right as the 
bishop, if they have episcopal con- 
secration, 896; who can give dimis- 
sorial letters, 897; revocation of 
privilege to ordain without dimis- 
sorials, App. III, 38, a; prelates 
who have right to give dimissorials 
can confer the orders themselves if 
they have the power of orders, 898; 
further regulations about dimissori- 
als of secular clergy, 898; prelates 
to whom dimissorials may be ad- 
dressed, 899; revocation and lim- 
itation of dimissorials, 900; local 
Ordinary only may ordain, 900; 
bishops of Latin Rite forbidden to 
ordain men of the Oriental rites, 
900; ordination of religious, 901- 
905 (see Religious); candidates for 
orders must be baptized, 906; must 
be free from irregularities and im- 
pediments, 907; must be needed for 
service of the diocese, 908; right of 
bishop and religious superior to 
prohibit reception of orders, 909; 
freedom of choice of clerical state, 
910; wrong to hinder any qualified 
man from the clerical state, 911; 
candidates must have attended 
seminary at least for the entire 
course of theology, 912; tonsure 
and minor orders may be given 
only to candidates who intend 
to ascend to the priesthood, 913; 
positive proofs of required qualifi- 


INDEX 


cations necessary, 914; requisites 
for licit ordination, 915; age for 
major orders, 916; age for minor 
orders, 917; previous studies re- 
quired for the various orders, 918; 
declaration on permission to ordain 
priests after three years’ theology, 
App. III, 38, ¢; prescribed order 
and intervals, 919-920; canonical 
title, 921; various titles, 922; 
titles of ordination for religious, 
923; irregularities and other im- 
pediments, 924-956; declarations 
on dispensations from irregularities 
and impediments, App. III, 38, d; 
irregularities ex defectu, 925; illegit- 
imacy, 926; bodily defect, 927; 
epilepsy, insanity, diabolical posses- 
sion, 928; bigamy, 929; infamy of 
law, 930; judge who pronounced 
death sentence, 931; executioner 
and his assistants, 932; crime, 933; 
apostates, heretics and schismatics, 
934; reception of baptism from 
non-Catholics, 935; attempt at 
certain forbidden marriages, 936; 
murder and abortion, 937-938; 
mutilation and attempted suicide, 
939; practice of medicine and sur- 
gery by clerics resulting in death, 
940; abuse of sacred orders, 941; 
conditions necessary to incur ir- 
regularity ex delicto, 942; simple 
impediments to sacred orders, 943- 
950; children of non-Catholics, 
944; married men, 945; offices and 
duties incompatible with clerical 
state, 946; slaves, 947; men sub- 
ject to military service, 948; con- 
verts, 949; loss of good reputation, 
950; ignorance of irregularity does 
not excuse, 951; multiple irregu- 
larity, 952; bishop’s faculties to dis- 
pense, 953; faculties of Ordinaries 
of exempt religious, 954; faculties 
of the confessor, 955; how to 
petition and interpret dispensa- 
tion from irregularities, 956; 
requisites prior to ordination, 





INDEX 703 


957; testimonial letters necessary, 
958; testimonials from dioceses of 
temporary residence, 959; testi- 
monials issued by religious supe- 
riors, 960; examination of candi- 
dates before ordination, 961; pub- 
lication of names of seculars in their 
proper parish, 962-963; retreat 
before ordination, 964; in the rites 
and ceremonies the Pontificale must 
be strictly followed, 965; Mass of 
' ordination or of consecration to be 
said by the ordaining bishop, 966; 
clerics from Oriental Rites joining 
the Latin Rite, 967; those pro- 
moted to orders must receive Com- 
munion in the ordination Mass, 
968; time and place of ordination, 
969; defect in ordination may be 
supplied on any day, 970; to ordain 
outside his diocese, bishop needs 
consent of the local Ordinary, 971; 
general ordinations should be given 
in the cathedral, 972; record and 
testimonial of ordination, names 
and orders conferred to be kept 
in diocesan archives, those ordained 
to receive certificate, 973; record of 
ordination to subdeaconship to be 
recorded in baptismal record, 974; 
sacred orders diriment impediment 
to marriage, history of impediment, 
1058; no dispensation from im- 
pediment of orders, 1059; penalty 
for reception of orders from ex- 
communicated, interdicted or sus- 
pended prelate, 2228; penalty for 
illicit conferring of orders, 2229; 
penalty for illicit reception of 
orders, 2230. 

Ordinaries: faculties, 256-257; local 
—, religious subject to the —, 
378; power to effect union of ben- 
efices, 1485-1437; power to trans- 
fer benefices, 1438; power to divide 
and dismember parishes, 14389- 
1442; power with reference to con- 
version of benefices, 1444; power 
to confer benefices, 1445; right to 


annual tax or cathedraticum, 1494; 
may impose extraordinary taxes 
for special needs, 1495; are exec- 
utors of all donations and bequests 
made in favor of religion or char- 
ity, 1508-1509; duty to oversee dili- 
gently administration of ecclesi- 
astical goods in their territory, 
1512; duty to influence the faith- 
ful to strive after virtue and desist 
from vice, 2050; faculties to remit 
penalties of the common law, 2077- 
2079; penalty for disobedience 
to proper Ordinary, 2184; proc- 
ess to be conducted by the Or- 
dinary prior to presentation of a 
cause of beatification to the Holy 
See, 1930-1943; duty to forward 
account of process on writings of 
the Servant of God, of the Informa- 
tive Process and of the Process of 
Non-Cult to the S. Congregation, 
1944-1945; no canonical trial but 
mere recourse to the SS. Congre- 
gations granted against administra- 
tive acts of the Ordinary, App. III, 
63, a-b. 


Ordinary Jurisdiction: see Jurisdic- 


tion, Ecclesiastical. 


Ordination Cases: cases wherein the 


obligations contracted by ordina- 
tion or the validity of the ordina- 
tion itself is attacked, must be 
referred to the S. Congregation of 
the Sacraments, but cases wherein 
a substantial defect of the Rite is 
pleaded, must be referred to the 8S. 
Congregation of the Holy Office, 
1901; persons who have right to 
attack the validity of sacred or- 
dination, 1902; procedure of the 
court, 1903; the cleric is forbid- 
den to exercise sacred orders once 
action is commenced, 1904; two 
sentences required to free cleric 
from obligations attached to orders, 
1905; court of trial, 1905. See 
Orders. 


Ordo: definition, 365. 


704 INDEX 


Oriental Church, Congregation for 
the: 1, 201; vow of continency, 
members may marry while in 
minor orders, 1058. 

Oriental Rite, Catholics of: may not 
be received into religious organiza- 
tions of Latin Rite without proper 
permission, 432; Oriental cleric 
who joins the Latin Rite must re- 
ceive those orders, according to the 
Latin Rite, which he has not re- 
ceived in the Oriental, 967. 


Papal Blessing: faculties to give, 831; 
distinct from the general absolution, 
832; privileges of Third Orders 
with regard to, 832. 

Parents: duties toward their chil- 
dren, 1144-1146; duty to instruct 
the children in Christian Doctrine, 
1353; excommunication of those 
who have their children baptized 
by non-Catholic ministers, 2166, 
2169. 

Parishes: may not be established for 
different languages without regard 
to territory, 168, App. III, 10, c; 
canonical standing in the United 
States, 169, App. III, 10, b; how 
parishes erected while district was 
under jurisdiction of the Propa- 
ganda become canonical, App. III, 
10, a; foreign language parishes 
and jurisdiction in marriage cases, 
1101; proper parish with regard 
to burial of the faithful, 1244- 
1254; power to divide, 1434; 
parishes united with houses of re- 
ligious, 1437; power of local Or- 
dinary to divide and dismember, 
1439-1441, App. III, 55. For 
union, division, resignation, etc., of 
parishes, see Benefices. 

Parochial Consultor: see Consultors, 
Parochial. 

Parochial Vicar: see Vicar, Parochial. 

Participation in Crime: penalty for— 
with an excommunicatus vitandus, 
2193. See Cooperators, 


Passion: effect of passion on liability 
of acts, 2038. 

Pastor: power to dispense, 60; power 
of delegation, 151; who are real 
pastors in the United States, 167- 
170; how constituted, 325; moral 
persons as pastors, 326; qualifica- 
tions, 327; removable and irre- 
movable pastors established, 328; 
right of bishop to appoint, 329; 
appointment in the United States, 
330; appointment of quasi-pastors, 
332; manner of appointment, 333; 
concursus for election of pastors, 
334; examination of candidates, 
335, App. III, 16, a; pastor may 
hold only one parish and there may 
be only one pastor in parish dis- 
trict, 336, App. ITI, 16, b; taking 
possession of parish, 337; functions, 
338, App. III, 16, c; revenues, 339; 
eare of souls, 340; obligations, 
341-348; obligation of residence, 
341; vacation, 342; absence, 3438; 
application of Mass pro populo, 
344; care of several united par- 
ishes, 3845, App. III, 16, e; divine 
services for the people, 346; care 
of the sick, 347; care of parochial 
records and seal, 348; pastor of 
Cathedral Church precedes all 
other pastors, 358, App. III, 16, f; 
examination of religious pastors, 
App. III, 7, a; office and duties 
of the religious pastor, 548; relig- 
ious pastor subject to visitation 
and jurisdiction of the local Ordi- 
nary, 544; removal of religious pas- 
tor. 545; right to confer Solemn 
Baptism within parish reserved 
to pastor, 633; duty to keep rec- 
ords of Confirmation, 695; facul!- 
ties to absolve from _ diocesan 
reserved cases during the paschal 
season, 812; duty to instruct the 
people on the Sacrament of Mat- 
rimony and its impediments, 990; 
bound to instruct persons about to 
be married on the duties and obli- 





oe ee 


| 
: 
: 


INDEX 705 


gations of the married state, 1003; him and impose an appropriate 
duty concerning mixed marriages, penalty, 2013; punishment of pas- 
1048; requisites for valid assist- tor who does not amend after 
ance at marriages, 1100-1102; rebuke and penalty, 2014. 

must explicitly designate other | Patriarch: honor and office, 210. 
priest to witness a marriage cere- | Patrimony: title for ordination, 922. 
mony, 1103-1105; may not dele- | Patronage; definition of right of pat- 


gate priest to witness a marriage 
until all is done that is demanded 
by Canon Law to prove freedom of 
parties, 1107; may not delegate an 
excommunicated or suspended 
priest, or one under an interdict of 
declaratory or condemnatory sen- 
tence, to witness a marriage, 1108; 
power to dispense in individual 
cases from observation of holydays 
of obligation and of fast and absti- 
nence, 1272; duty to give catechet- 
ical instruction, 1350-1352; when 
pastor invites extern priest to 
preach, he must apply for facul- 
ties for him, 1357; pastors and 
other priests admonished to foster 
vocations to the priesthood, 1369; 
pastors who neglect their pastoral 
duties to be tried summarily, 1985; 
pastors convicted of neglect of pas- 
toral duties have recourse only to 
the Apostolic See, but appeal does 
not suspend sentence of the bishop, 
1986; irremovable pastors, see 
Irremovable Pastors; removable 
pastors, see Removable Pastors; 
manner of procedure against a 
pastor negligent in fulfillment of 
his pastoral duties, see Pastoral 
Duties; penalties for pastors and 
other priests who incite the people 
to interfere with ecclesiastical juris- 
diction, 2192; penalty for pastor 
negligent in the care of souls, 
2238. 

Pastoral Duties, Neglect of: manner 
of procedure against a negligent 
pastor, 2012-2014; bishop shall 
admonish the pastor guilty of 
gross neglect, 2012; if pastor does 
not amend, bishop shall rebuke 


ronage, 1453; not admitted in the 
United States, 1454; various kinds, 
1455; restriction, 1456; patronage 
acquired before the promulgation 
of the Code, 1457, App. III, 57; 
rights of patrons defined and lim- 
ited, 1458; privileges, 1459; right 
of presentation defined, 1460; 
presentation and concursus, App. 
III, 57, c; several patrons in one 
benefice or church, 1461-1465; ad- 
mission of presentation by local 
Ordinary, 1466; presentation of 
pastor by the people of the parish, 
App. III, 57, b; acceptance of pres- 
entation by the candidate and 
canonical institution, 1467;  obli- 
gations of patrons, 1468; cessa- 
tion of rights of patrons, 1469; 
special concession by the Holy See 
of the right of presentation does 
not constitute patronage, 1470. 


Patrons: of nations, dioceses, prov- 


inces, etc., to be confirmed as such 
by the Holy See, 1305. 


Pauline Privilege: subject to the 


Holy Office, 191; dissolves mar- 
riage of unbaptized, but cannot be 
applied when a Catholic marries an 
unbaptized person with a dispensa- 
tion, 1050 and 1153; interpellations, 
1154-1156; dispensations from in- 
terpellations, 1156; time of disso- 
lution of first marriage, 1157; in 
doubtful cases, Pauline Privilege 
enjoys the favor of the law, 978, 
1158; cases likely to occur in the 
United States, 1159-1161. 


Peculium: of religious, 505. 
Penalties, Ecclesiastical: bishop may 


punish religious with such penal- 
ties in matters in which they are 


706 


subject to him, 532; right of the 
Church to inflict penalties, 2050; 
definition and species, 2051; ter- 
minology, 2052; interpretation of 
penal laws, 2053-2054; persons 
who have coercive power, 2055- 
2056; penalties for violation of 
laws which have no penal sanction, 
2057-2058; rules by which the 
judge or superior must be guided in 
application of penalties, 2059-2062; 
persons subject to the coercive 
power, 2063-2067; ignorance and 
other mental conditions as excuse 
from penalties, 2068-2069; pun- 
ishment of youths who have not 
reached age of puberty, 2070; 
penalties of accomplices, 2071; 
automatic effect of penalties late 
sententie, 2072; manner of in- 
flicting penalties ferende sententic, 
2073-2075; remission of penalties, 
2076; faculties of the Ordinary to 
remit penalties of the common 
law; prescription of penalties, 
2077-2079; medicinal penalties 
or censures, see Censures, Excom- 
munication, Interdict, and Suspen- 
sion; vindicative penalties, 2127- 
2146; definition and infliction of 
vindicative penalties, 2127; appeal 
from vindicative penalties, 2128; 
when judge may suspend their ex- 
ecution, 2129; cessation of vindica- 
tive penalties, 2130; in more urgent 
cases, 2131; list of common vin- 
dicative penalties, 2132; penal sup- 
pression or transfer of an episco- 
pal see reserved to the Roman Pon- 
tiff, and of a parish to local Or- 
dinaries after consultation with the 
chapter (diocesan consultors), 2133; 
contraction of infamy of law and 
infamy of fact, 2134; effects of in- 
famy of law and fact, 2135; ces- 
sation of infamy of law and fact, 
2136; disqualification, 2137; fines 
imposed by common law to be used 
for pious purposes, 2138; of vin- 


INDEX 


dicative penalties special to the 
clergy, 2139; deprivation of ben- 
efices, offices and dignities, as pen- 
alties, 2140; deprivation of right 
to wear ecclesiastical garb, and 
prohibition to exercise  ecclesi- 
astical ministry, 2141; Ordinary 
cannot command a cleric to stay in 
certain place outside his diocese, 
unless he sends him to a house of 
correction destined for outsiders, 
2142; command to stay in a cer- 
tain place or in a religious house 
for a long time shall be imposed 
only in serious cases, 2143; effects 
of deposition, 2144; if deposed 
cleric does not show signs of amend- 
ment, Ordinary may deprive him 
forever of the right to wear eccle- 
siastical garb, 2145; definition and 
effect of degradation, 2146; for pe- 
nal remedies, see Remedies, Penal; 
Ordinary may at his discretion im- 
pose penances together with penal 
admonition or rebuke, 2154; of pen- 
alties for individual offenses, 2155— 
2219; penalties for apostates, here- 
tics and schismatics, 2155-2158; 
for suspicion of heresy, 2159- 
2160; for defending condemned 
doctrines, 2161; for reading or 
keeping forbidden books, 2162- 
2165; for mixed marriage before 
non-Catholic minister, and non- 
Catholic baptism or education of 
children, 2166-2169; for offenses 
against religion, 2170-2182; for 
violation of the Sacred Species, 
2170; for illegal bination and 
breaking the natural fast before 
Mass, 2171-2172; for usurpation 
of priestly functions, 2173-2175; 
for blasphemy and perjury, 2176; 
for offenses violating the laws reg- 
ulating Mass stipends, 2177; for 
superstition and sacrilege, 2178; 
for making and spreading faise 
relics, 2179; for profit-making 
through indulgences, 2180; for 





INDEX 707 


violation of corpses and graves, 
2181; for violation of churches 
and cemeteries, 2182; for offenses 
against ecclesiastical authorities, 
persons and things, 2183-2204; 
for offenses committed in the elec- 
tion of the Supreme Pontiff, 2183; 
for disobedience to the Supreme 
Pontiff, or the proper Ordinary, 
and conspiracy, 2184; for appeal 
from laws and commands of the 
Supreme Pontiff to an Gicumenical 
Council, 2185; for recourse to the 
civil power against letters or acts 
of the Apostolic See or its legates, 
2186; for interference with the 
liberty and rights of the Church, 
2187; for joining the Freemasons 
and similar societies, 2188-2190; 
for clerics and religious who im- 
pede ecclesiastical liberty, rights 
and jurisdiction, by recourse to 
civil power, and for clerics who 
join Masonic or similar organiza- 
tions, 2191; for pastors and other 
priests who incite the people to 
interfere with ecclesiastical juris- 
diction, 2192; for unauthorized 
absolution from excommunication, 
participation in the crime of an 
excommunicatus vitandus,  viola- 
tion of censures, for bringing inter- 
dict on a place or legal body, 2193; 
for violation of the laws of Chris- 
tian burial, 2194; for obduracy in 
censures, 2195; for violation of the 
privilege of the ecclesiastical forum, 
2196; for violation of enclosure, 
2197; for violation of the privile- 
gium canonis, 2198; for verbal 
injury to clerics, 2199; for infringe- 
ment on the goods and rights of 
the Roman Church, 2200; _ for 
usurpation and detention of tem- 
poral ecclesiastical goods and prop- 
erty, 2201; for illegal alienation of 
ecclesiastical goods, 2202; for un- 
just withholding of goods from 
pious institutions, 2203; for re- 


fusal of legitimate contributions 
and taxes, 2204; for abortion, sui- 
cide and attempted self-destruc- 
tion, 2205; for duelling, 2206; for 
unjustly coercing one to embrace 
the clerical or religious state, 2207; 
for abduction, 2208; for offenses 
against life, liberty and property, 
2209; for verbal injury to others, 
2210; for bigamy, 2211; for offen- 
ses against chastity, 2212-2214; 
for forgery of Papal documents, 
2215; for fraud in petition for 
rescripts, 2216; for forgery of ec- 
clesiastical documents and records, 
2217; for false accusation of solici- 
tation against confessor, 2218- 
2219; for offenses in the adminis- 
tration or reception of orders and of 
the other sacraments, 2220-2231; 
for administration of the sacra- 
ments to forbidden persons, 2220; 
for attempt to administer Confir- 
mation (by a priest), 2221; for 
hearing confessions without facul- 
ties, 2222; for absolution of accom- 
plice in sin of impurity, 2223; for 
solicitation to sins of impurity in 
connection with confession, 2224; 
for violation of the seal of confes- 
sion, 2225; for consecration of 
bishop without Papal mandate, 
2226; for simony in the adminis- 
tration or reception of the sacra- 
ments, 2227; for reception of 
orders from excommunicated, sus- 
pended or _ interdicted prelate, 
2228; for illicit conferring of 
orders, 2229; for illicit reception of 
orders, 2230; for mixed marriage 
without dispensation, 2231; for 
refusal of priest to submit to annual 
examination, 2232; for absence 
from diocesan conferences, 2233; 
for carelessness in performance of 
rites and ceremonies, 2234; for 
discarding clerical garb, 2235; 
for engaging in worldly enterprises 
forbidden to the clergy, 2236; 


708 


for violation of the law of resi- 
dence, 2237; for negligence of pas- 
tor in the care of souls, 2238; for 
carelessness of pastor in drawing 
up and keeping parochial records, 
2239; for negligence in office on 
the part of canon theologian and 
canon penitentiary, 2240; for 
apostacy from religious life, 2241; 
for flight from religious life, 2242; 
for deceit in religious profession, 
2243; for violation of law of celi- 
bacy, 2244; for violation of relig- 
ious life in religious organizations, 
2245; for molestation of voters in 
canonical elections, 2246; for of- 
fenses committed in elections, 
2247; for simony in conferring 
and accepting ecclesiastical offices, 
benefices and dignities, 2248; for 
abuse of right of election, presen- 
tation and nomination, 2249; for 
illicit taking possession of ben- 
efices, offices and dignities, 2250; 
for acceptance of non-vacant ben- 
efice, office, or dignity, 2251; for 
illegal possession of two incom- 
patible offices or benefices, 2252; 
for refusal of Cardinal to take pre- 
scribed oath, 2253; for neglect of 
bishop-elect to receive consecra- 
tion in due time, 2254; for unlawful 
desertion of duties by cleric, 2255; 
for resignation of office, benefice or 
dignity into the hands of laymen, 
2256; for illegal refusal to abandon 
office, benefice or dignity, 2257; 
for neglect to receive the abbatial 
blessing, 2258; for neglect to 
make prescribed profession of faith, 
2259; for abuse of ecclesiastical 
authority or office, 2260; for of- 
fenses in connection with diocesan 
archives, 2261; for unfaithfulness 
in custody of ecclesiastical records, 
2262; for attempted bribery of 
officials of the Curia, 2263; for 
illegal exaction of taxes, 2264; 
for unlawful issuance of dimissorials 


INDEX 


during vacancy of bishopric, 2265; 
for illicit ordination of exempt re- 
religious, 2266; for unlawful ad- 
mission to novitiate or religious 
profession, 2267; for failure to 
keep dowry intact, and for failure 
to notify local Ordinary of recep- 
tion or profession in religious com- 
munities of women, 2268; for in- 
terference of religious superiors 
with the visitation, 2269; for in- 
terference by superioresses with 
the liberty of conscience of their 
subjects, 2270. 


Penance, Sacrament of: definition, 


769; minister, 770, $17; besides valid 
orders, jurisdiction required, 771; 
ordinary and delegated jurisdic- 
tion, 772; those who have ordinary 
jurisdiction, 773; cessation of ju- 
risdiction, 774; jurisdiction for — 
granted by, Cardinals, bishops and 
priests, 775; pastors cannot dele- 
gate jurisdiction for confessions, 
App. III, 34, a; delegated juris- 
diction to secular and religious 
priests, 776-777; jurisdiction for 
confessions of Sisters, 778; ex- 
amination of priests to be approved 
as confessors, 779-780; limita- 
tion of delegated jurisdiction, 781; 
manner of granting delegated juris- 
diction, 782; revocation and sus- 
pension of jurisdiction, 783-785; 
extent of jurisdiction, 786; jurisdic- 
tion in danger of death, 787; con- 
fession on the ocean, 788, App. ITI, 
34, b; absolution of accomplice, 
789-790; prayers attached to form 
of absolution should not be lightly 
omitted, 791; absolution should 
not be deferred without serious 
reason, 792; penance should be in 
proportion to sins and circum- 
stances of penitent, 793; duty of 
priest as judge and physician, 794; 
sacramental seal, 795-796; master 
of novices, assistant master, and 
superior of college and seminary 





— —— ~~ » _— 


INDEX 


may not hear confessions of their 
subjects, 797; obligations of pas- 
tors to hear confessions, 798; sce 
Reservation of sins; subject of 
Sacrament of Penance, 816; min- 
ister, 817; power of the keys, 818; 
matter of the Sacrament, 819; 
sins which need not be confessed, 
820; use of an interpreter, 821; 
obligation to denounce soliciting 
priest, 822; confession to priest 
of different Rite, 823; precept of 
annual confession, 824-825; place 
of confession, 826-827. 

Penances: sacramental penances, see 
Penance, Sacrament of; may be 
imposed extrajudicially by way of 
precept, 1849; penalties for the 
correction of offenders and in pun- 
ishment of offenses, 2051; when 
imposed in external forum, 2153; 
principal kinds, 2154. 

Penitentiary, Sacred: 
Penitentiary. 

Pensions: of religious belong to their 
order, 505; imposition of pensicn 
on a benefice, 1443, App. IIT, 56, 
a-b. 

Peregrint: not bound by particular 
laws of place in which they stop, 
12, 68; effect of difference of ob- 
servance of the general law in vari- 
ous dioceses, App. III, 5, e; dom- 
icile of peregrini, 68. 

Perjury: penalties, 2176. 

Perplexed Case: see Casus Per- 
pBlexus. 

Persons: subject to ecclesiastical 
law, 12, 64; probably baptized 
persons, 65; of legal age, 66; 
place and domicile, 67-72; rela- 
tionship, 73-74; of various Rites, 
75; legal and moral persons, 76-82; 
distinction between clergy and 
laity, 83. 

Philippine Islands: immigration of 
priests from Europe and Medi- 
terranean countries to Philippine 
Islands, App. III, 7, h. 


see Sacred 


709 


Philosophy: see Studies. 

Physical Contact: of sponsor neces- 
sary in Baptism, 663; in Confirma- 
tion, 680. 

Pious Unions: constitution, 583-584; 
statutes, 586; rights, 587; recep- 
tion and expulsion of members, 
588-591; government, 592-594; 
erection, 600; insignia, 601; ded- 
ication, 602; where erected, 603; 
faculties and spiritual favors, 604; 
meetings and sacred functions, 
605-607. See Associations. 

Place: of solemn Baptism, proper 
parish church, 670; of celebration 
of Holy Mass, 721-722; of admin- 
istration of Holy Communion, 768; 
of ordination ordinarily the ca- 
thedral church, 972; of marriage 
ordinarily the parish of the bride, 
1115-1118; for the celebration of 
marriage between Catholics, of 
mixed marriages, 1140; marriage 
may not as a rule be contracted 
in a private house, 1141; mixed 
marriages are not to take place in 
church, 1142. 

Place of Origin: 67. 

Place of Trial: in ecclesiastical ac- 
tions and lawsuits, 1552-1560; 
place of ecclesiastical trials, 1614. 

Places, Sacred: definition, conse- 
cration reserved to local Ordinary, 
1192; bishop in the United States 
cannot delegate a priest to conse- 
crate a place, though he may have 
indult to delegate for consecration 
of altars and chalices, 1193; per- 
sons who have a right to bless a 
place, 1194-1195; record and proof 
of consecration or blessing, 1196; 
sacred places exclusively under the 
jurisdiction of the Church, 1197. 
See Churches, Altars, and Ceme- 
teries. 

Plenary Council: 
nary. 

Pollution of Churches: see Desecra- 
tion. 


see Council, Ple- 


710 


Pontiff, Roman: see Roman Pontiff. 

Pontifical Functions: of bishops, 248; 
pontifical functions and Divine 
Office, App. III, 7, b; declaration 
on liturgical difficulties, App. III, 
152; 

Pope: see Roman Pontiff. 

Portable Altar: privilege of, 721. 

Possession, Diabolical: a canonical 
irregularity, 928. 

—. Illegal; penalty for illicit pos- 
session of benefices, offices and 
dignities, 2250; penalty for illegal 
possession of two incompatible 
offices or benefices, 2252. 

Possessory Actions: 1656-1662. 

Postulants: see Postulate. 

Postulate: in religious organizations, 
427-430; time and conditions, 427— 
429; need not be made in house of 
novitiate, retreat to be made by 
postulants, 430. 

Postulation: in election to office, 138- 
141, App. ITI, 8, b. 

Postulator: in process of beatifica- 
tion; office, 1907-1908; duties, 
1909. 

Poverty: canonical title for ordina- 
tion of religious, 923. See Vows. 
Power of Orders: may not be dele- 

gated, 163; of abbots, 539. 

Prayer: for the intention of the Holy 
Father as a condition of indul- 
gences, 852. 

Preaching, Office of: those bound in 
virtue of their office to preach, 
1348; faculty and appointment to 
preach, 1349; catechetical instruc- 
tion, 1350-1354; local Ordinary 
alone can give faculty to preach in 
his territory to secular and religious 
clergy, 1355; religious superior of 
exempt Order can grant faculties 
to preach to religious subject to 
him, but not to preach to Sisters 
or orders of men, 1355; faculties 
granted to religious by the local 
Ordinary and their superiors, 1356; 
faculties to preach in another dio- 


INDEX 


cese must be obtained from the 
local bishop on recommendation of 
the proper Ordinary, and pastor 
who invites extern preacher must 
apply for faculties, 1357; faculties 
to be granted only to priests and 
deacons, 1358; duty of local 
Ordinary to preach, 1359; duty 
of pastor to preach on Sundays and 
holydays of obligation, 1360-1361; 
preaching in Lent and Advent, 
1362; manner of preaching, 1363. 

Precedence: among various physical 
and legal persons, 82; of Cardinals, 
184; of patriarchs, primates, arch- 
bishops, bishops, 215; of vicar- 
general, 273; of vicars forane, 324; 
of precedence among religious, 367; 
precedence of pastors and other 
priests, 358; App. III, 16, f; of 
ecclesiastical associations of lay 
persons, 595. 

Precepts: personal precepts bind 
everywhere; expiration of pre- 
cepts; difference between law and 
precept; precepts cannot be urged 
in ecclesiastical court unless given 
in form of legal document or before 
two witnesses, 18; precepts as a 
penal remedy, see Remedies, Penal. 

Prefect Apostolic: see Vicar Apos- 
tolic. 

Prefecture, Apostolic; 
parishes, 167. 

Prelates Nullius: to be called to a 
General Council, 174; meaning of 
term, 236; nomination and as- 
sumption of office, 237; powers, 
obligations, and insignia, 238; 
abbatial blessing and appointment 
of vicar-general, 238; consultors, 
vacancy of office, 239; prelate at- 
tached to palace of the Roman 
Pontiff, 240. 

Prescription: as adopted by the 
Church for ecclesiastical goods, 
1497; ecclesiastical goods and 
rights that may not be acquired by 
prescription, 1498; Mass stipends 


divided into 





Primate: 


INDEX 711 


and obligations to apply Mass for 
a certain intention cannot be pre- 
scribed, 1499; ecclesiastical offices 
and benefices cannot be pre- 
scribed, 1500; no right of prescrip- 
tion against authority, or from au- 
thority of some local Ordinary, 
1501; no prescription against duty 
to pay the cathedraticum, 1502; 
sacred things of private individuals 
may be obtained by prescription, 
but cannot be put to profane use, 
1503; immovable, movable precious 
goods, rights and claims, personal 
and real, of the Holy See demand 
one hundred years for prescription, 
but those of other legal ecclesiasti- 
cal persons thirty years, 1504; civil 
law of prescription accepted with 
some exceptions; good faith re- 
quired for valid prescription; pre- 
scription in the civil law of the 
United States, 1505; effect of 
change of the Code on former law 
on prescription, App. III, 5, d; 
prescription of criminal actions, 
1664; of civil actions, 1668; of 
penalties, 2079. 


Presentation: penalty for abuse of 


right, 2249. 


Priest: special indult to confer Con- 


firmation, 681-684; question of 
power to confer subdeaconship and 
priesthood, 888; private property 
of priest is not ecclesiastical prop- 
erty, 1489; immigration of priests 
from Europe and Mediterranean 
countries to America and the Phil- 
ippine Islands, App. III, 7, h. 
honor and office, 210; 
rights, 211. 

Printing: printing and publishing of 
liturgical books reserved to the 
‘Holy See, 1283; printing of mat- 
ters concerning causes of beatifica- 
tion and canonization may not be 
done without permission of the S. 
Congregation of Rites, 1402. 
Privation of Office, 147. 


Privileged Altar: 


Privilege, Pauline: see Pauline Priv- 


ilege. 

Cardinals enjoy 
privilege on any day, 184; persons 
who have power of—designate 
such altars, definition, 833; days 
of—, inscription; no larger stipend 
may be taken for Mass celebrated 
on such an altar, 834; _ priests 
who belong to the sodality, A 
Transitu S. Josephi, and those who 
have made the heroic act, enjoy 
the personal concession of the 
daily privileged altar, 834; for the 
dying, App. III, 34, ec. 


Privileges: those granted by the 


Holy See remain in force unless 
explicitly recalled in the Code, 
4; how privileges are acquired, 
definition of privileges, 46; com- 
munication of privileges, 47-48; ha- 
bitual faculties are considered priv- 
ileges preter jus, 49; interpretation 
of privileges, 50; use of privileges, 
51; concession, 52-57; privileges of 
bishops, 255-257; precedence of 
bishops, 255; privileges of indul- 
gences and throne of bishops, 257; 
privileges of religious organizations, 
communication of privileges, 529; 
all religious have privileges of cler- 
ics, 580; privileges of exemption of 
regulars, 531-532; autonomy of 
religious congregations of Papal 
rule, 533. 


Privilegium Canonis: penalties for 


violation of, 2198. 


Procedure: order of procedure in 


ecclesiastical trials, 1607-1612. 


Processions, Sacred: definition, 1313; 


Corpus Christi, 1314; other pro- 
cessions may be ordered by the 
bishop, 1315; religious with no 
parish attached cannot hold pro- 
cessions outside their churches and 
cloister without permission of the 
local Ordinary, 1316; no new pro- 
cession to be introduced or old ones 
to be abolished without permission 


712 INDEX 


of the local Ordinary; duty of 
Ordinaries to regulate processions, 
1317, App. III, 52, a; Blessed Sac- 
rament not to be carried on vehi- 
cles, App. III, 52, b. 

Procurators: in religious organiza- 
tions, 394,396; designation and 
office of procurator, general pro- 
curator, 397; procurator in law- 
suits, 1629-1636, App. ITI, 65. 

Professed Religious: rights and du- 
ties of temporarily professed, 486- 
487; their legal standing in refer- 
ence to temporal goods, 488-492; 
goods of simply professed, 490; 
goods of solemnly professed, 491; 
loss of benefices by profession, 493; 
loss of proper diocese by profes- 
sion, 494. See Religious. 

Profession of Faith: when the faith- 
ful are bound to make this profes- 
sion, 1346; persons bound to make 
profession of faith in the form pre- 
sented by the Church, 1421; pro- 
fessors of theology and philosophy 
in religious organizations bound to 
make this profession by the Motu 
Proprio“ Sacrorum Antistitum,”’ 
1422; penalty for neglect to make 
prescribed profession, 2259. 

Profession, Religious: requisites for 
validity, 478; profession of religious 
women in congregations of Papal 
law, 479, App. ITI, 22, a; profes- 
sion of novices subject to military 
service, 480, App. III, 22, c; tem- 
porary and perpetual profession, 
481-482; formalities of profession, 
483-485, App. III, 22, d; rights 
and duties arising from profession, 
486-487; effects of profession con- 
cerning property, 488-489; effect 
of solemn profession on goods of 
religious, 490-491; renunciation 
forbidden in communities with 
simple profession, 492; loss of ben- 
efice and proper diocese by pro- 
fession, 493, 494; invalid profes- 
sion rectified, 495; solemn pro- 


fession a diriment impediment to 
matrimony, 1060; penalty for pro- 
fesson by deceit, 2243; penalty for 
unlawful profession, 2267; pen- 
alty for failure to notify local Or- 
dinary of profession in religious 
communities of women, 2268; — 
of nuns, App. III, 3, b; effect of 
change of law on requisites for 
profession, App. III, 22, b; see 
Religious. 

Professor: of Sacred Scripture in the 
seminary must at least have the 
baccalaureate from the Biblical 
Commission or the Biblical Insti- 
tute at Rome, 1384; professor of 
theology and philosophy in semi- 
naries and in religious organizations 
bound to make the profession of 
faith, 1422. 

Prohibition of Books: 1410-1420. See 
Books, Prohibition of. 

Promises: necessary in marriage with 
dispensation from disparity of cult, 
1055; is the dispensation valid 
when the promises are made only 
to deceive? 1056; the Church does 
not dispense when non-Catholic 
party refuses to make the ante- 
nuptial promises, 1139. 

Promotion: of religious to dignities, 
offices and benefices, 540; effects 
of promotion of religious to the 
Cardinalate and episcopate, 541; 
abdication of Cardinalate or epis- 
copate by a religious, 542; rights 
and duties of religious promoted to 
pastorship, 543-544. 

Promotor Fidei: appointment in 
the process of beatification, 1911; 
duties, 1912. 

Promotor Justitice (Prosecutor): 
appointment and duties in ecclesi- 
astical trials, 1575; may be also 
defensor vinculi, 1577. 

Promulgation: of law, 8; of laws of 
the Holy See in the Acta A postoli- 
ce Sedis,9. 

Proof: valid proof of Baptism, 679; 


ee ee 


-INDEX 


valid proof of Confirmation, 695; 
facts which need not be proved, 
1701; proof by witnesses, 1706- 
129; weight of testimony, 1730- 
1732; proof by experts, 1733-1741; 
proof by documents, 1744-1753. 

Propagation of the Faith, Congrega- 
tion of the: 196. 

Property, Temporal (of religious): see 
Goods, Temporal; penalties for 
offenses against, 2209. 

Pro-Prefect Apostolic: delegated fac- 
ulties to confirm, 684. 

Propriety, Public: diriment impedi- 
ment of—to marriage, differs in the 
new Code; first source, invalid 
marriage, 1073; second source, 
public or notorious concubinage, 
1074. 

Prosecutor: see Promotor justitic: 

Prothonotary Apostolic: the vicar- 
general, if not a bishop, may wear 
the insignia of a prothonotary 
Apostolic, 273. 

Pro-Vicar Apostolic: delegated facul- 
ties to confirm, 684. 

Provincia: definition, 365. 

Provincial Council, see Council, Pro- 
vincial. 

Proxy: bishop who wishes to act as 
sponsor for a person whom he con- 
firms must use proxy, 1077; matri- 
monial consent may be given by 
proxy, 1089-1091; rules of law for 
marriage by proxy, 1092; plaintiff 
or defendant in court may use 
proxy, but must appear in person 
if the judge so orders, 1622; right of 
all parties in litigation to a proxy, 
and appointment of same, 1629; 
only one may be appointed, 1630; 
qualifications, 1631-1632; must 
have written mandate to repre- 
sent the party in litigation, 1633- 
1634; rejection and removal, 1635; 
forbidden to buy the lawsuit or to 
make arrangements for immoder- 
ate profit, 1636. 

Publication: of names of secular 


713 


candidates for major orders in 
their parish church, 962-963; of 
forbidden books, see Books, Cen- 
sorship of; of process of canoniza- 
tion, see Canonization. 

Public Offices: forbidden to clerics, 
110. 

Public Worship: obligation of relig- 
ious to obey orders of bishop con- 
cerning public worship, 528. 


Quasi-Domicile: 69-72. 
Quasi-Pastors: nomination, 332. 


Raccolta: official collection of au- 
thentic indulgenced prayers, 854. 
Real Estate: sale and lease of eccle- 

siastical property, 1534-1535. 

Rebuke: a penal remedy, see Rem- 
edies, Penal. 

Reception: into a religious organiza- 
tion, 426-486; the postulate, 427— 
430; the novitiate, 431-480; tem- 
porary and perpetual vows, 481-— 
486; penalty for failure to notify 
local Ordinary of reception into 
religious communities of women, 
2268. See Religious. 

Recidivus: increased liability in 
offenses, 2039. 

Reconciliation: of desecrated church, 
1214; persons who have power to 
reconcile a church, 1215. 

Records, Parochial: to be kept by 
the pastor, 348; pastor’s duty to 
keep records of Baptism, Confirma- 
tion, marriage, subdeaconship and 
solemn religious profession, 675; 
precautions to be observed, 676; 
care in recording Baptism of illegit- 
imates, 677, App. III, 29, d; when 
Baptism is not given by the proper 
pastor, the minister must inform 
the pastor, 678; records of Con- 
firmation, 695, App. III, 30; rec- 
ords of marriage, 1132; a personal 
duty of the pastor, 1133; manner 
of keeping proper baptismal rec- 
ords, 1134; parochial records are 


714 INDEX 


public ecclesiastical documents and 
full proof of the facts put on rec- 
ord, 1744, 1746; penalties for care- 
less keeping of parochial records, 
2239; penalty for unfaithfulness in 
the custody of ecclesiastical rec- 
ords, 2262. 

Rectors (of Churches): definition 
and appointment, 359; sacred 
functions which they may hold, 
360; bishop may order divine ser- 
vices for convenience of the people, 
361; pastor may take Communion 
to the sick if Blessed Sacrament is 
kept in church, 361; divine ser- 
vices, 362; removal of rector, 363. 

Reduction: of clerics to the lay state, 
164-165; temporarily professed re- 
ligious in minor orders is by dis- 
missal reduced to the lay state, 
567. 

Regulars: definition, 365; see Re- 
ligious; regulars who enjoy priv- 
ilege of exemption, 531; depend- 
ence of exempt regulars on local 
Ordinary, 532. 

Relations: of blood or marriage not 
affected by infamy of fact or of 
law, without prejudice to Canon 
2147, which rules that an irremov- 
able pastor who keeps servants or 
blood-relations of disreputable 
character in his house is to be de- 
prived of his parish, 2134. 

Relationship: of blood and mar- 
riage, 73-74; spiritual, see Spirit- 
ual Relationship. 

Relics: veneration good and useful, 
1304; special rules concerning ven- 
eration and custody, 1308; what 
relics may be exposed to public 
veneration, authentication of relics, 
1309; must be enclosed in sealed 
cases, 1310; relic of Holy Cross in 
pectoral cross of bishop becomes 
property of the cathedral at his 
death, 1311; relics may not be 
sold, 1312; penalties for making 
and spreading false relics, 2179. 


Religio: definition of, 365; defini- 


tion of religio clericalis, and juris ° 


pontificit, 365. See Religious. 
Religious, Sacred Congregation of: 
general duties, 195. 
Religious: All religious communities 
are subject to the S. Congregation 


of Religious, 195; religious are. 


subject to the S. Congregation of 
the Propaganda as missionaries in 
countries subject to that Con- 
eregation, 196; who can remove 
religious pastors, 328; authorized 
translations of laws on religious, 
App. III, 18, a; definition of 
religious state, 364; definition of 
various religious terms, 365; repeal 
of particular laws of religious by 
the Code, 17, 366; Canons speak- 
ing of religious in the masculine 
apply also to women religious and 
vice versa, 366; precedence of re- 


ligious, 367; erection of diocesan 


congregations, 368; the Norme to 
be followed in erecting congrega- 
gations, App. III, 18, b; report of 
congregations in diocese by bishop, 
369; spread of diocesan congrega- 
tions, 370; suppression of diocesan 
congregations, 371; division and 
changes of provinces, disposal of 
goods of extinct provinces, 372; 
establishment of diocesan religious 
in other dioceses, 373; their chap- 
ters of election, App. III, 18, f; 
erection of house of exempt relig- 
ious, 374; converting house to other 
uses, 375; suppression of a religious 
house, 376; obedience of religious 
to Roman Pontiff, 377; religious 
subject to local Ordinary, 378; 
power of superiors, 379-380; qual- 
ifications of religious superiors, 
381; term of office, 382, App. III, 
18, f; election of superiors, 383- 
385; obligations of superiors, 386- 
391; residence of superiors, 386; 
report of superiors, 387;  visita- 
tion by superiors, 388; visitation 


= sal clits Wi inns iu calli a ee ea 


—- es ey 


eS Se ee ee 


INDEX 715 


of local Ordinary, 389; matter 
of visitation, 390; administration 
of sacraments to religious, 391; 
titles of honor, 392; board of con- 
sultors for superiors, 393; consent 
of council required, 394; advice 
of council required, 395; procura- 
tor, 396; procurator-general, 397; 
vote of procurator-general, 398; 
confessors and chaplains of relig- 
ious, 399, App. III, 18, g; time 
and manner of confession of relig- 
ious, 400; confessions of Sisters, 
401-406; confessor in convents of 
women, 401; extraordinary con- 
fessor of Sisters, 402; Sisters may 
confess to any approved confessor, 
403; when seriously ill, Sister may 
call any approved confessor, 404; 
bishop appoints ordinary and ex- 
traordinary confessors of Sisters, 
405; office of ordinary confessor of 
Sisters, time and reappointment of, 
ordinary: and extraordinary confes- 
sors of religious women, 406; laical 
religious, 407; authority of chap- 
lains, 408; manifestation of con- 
science may not be urged by 
superior, 409; temporal goods and 
administration, 410-425; invest- 
ments of money of religious, 413; 
alienation of goods and property of 
religious, 414-416; financial re- 
ports to local Ordinary, 417; con- 
tracts made by religious, 420-423; 
donations by religious, 424-425; 
admission into community, 426; 
postulate, 427; time of postulate, 
428; postulate of lay brothers, 
429; place of postulate, 430; novi- 
tiate, see Novitiate; solemn pro- 
fession, 490-491; renunciation of 
temporal goods forbidden in com- 
munities with simple vows, 492; 
profession and loss of benefices 
and proper diocese, 493-494; rec- 
tifying invalid profession, 495; 
studies in clerical religious organi- 
zations, 496-501; duties of relig- 


ious, 502-506; obligations of re- 
ligious exercises, confession and 
wearing of religious garb, 507-508; 
enclosure, 509-513; penalties for 
violation of enclosure, 514-516; 
obligation of enclosure of nuns, 
5ifed2l Apo. As) 2) 230085 
duties of sacred ministry and 
divine worship, 522-525; of the 
Divine Office, 525-526; Conventual 
Mass, App. III, 28, b; correspond- 
ence of religious, 527; obedience 
to bishop with regard to public 
worship, 528; privileges of re- 
ligious, 529-532; have privileges of 
clerics, 530; autonomy of congre- 
gations of Papal law, 533; en- 
forcement of jurisdiction of Or- 
dinary by penalties, 534; partici- 
pate in indults published by the 
local Ordinary, not however to the 
prejudice of their rule or constitu- 
tions, 535; collecting of alms by 


religious, 536-538, App. III, 24; 


privileges of abbots, 539; obliga- 
tions of religious promoted to 
ecclesiastical dignities or to par- 
ishes, 540-545; of transition to an- 
other organization, 546-550, App. 
III, 25; of egress from a religious 
congregation, 551-577, App. III, 
26; rules concerning ordination of 
religious, 901; superior of exempt 
religious may issue dimissorials, 
necessary title for ordination of 
religious, 902; ordination of non- 
exempt religious, 903; episcopus 
proprius, of religious, 904; bishop 
to whom religious are to be sent 
for ordination, 905; right of relig- 
ious superior to prohibit reception 
of orders, 909; solemn profession a 
diriment impediment to matri- 
mony, 1060; professed religious de- 
prived of right of choosing place of 
burial, 1250; power of superiors 
to dispense from laws of fast and 
abstinence and of observance of 
holydays of obligation, 1272; keep- 


716 


ing of Blessed Sacrament in re- 
ligious houses and chapels, 1295, 
App. III, 51, b; religious with no 
parish attached to their church 
may not hold processions outside 
their church and cloister without 
permission of the local Ordinary, 
1316; benefices which belong to 
religious must be given to members 
of that religious organization, 1450; 
Canons to be observed in trials for 
dismissal of religious, 1548; former 
laws on dismissal of religious, App. 
III, 5, b; proper forum for ecclesi- 
astical trial of a religious is the place 
where his religious house is located, 
1555; competent court, 1570- 
1571; religious have no right to 
act in court without consent of 
their superiors, except in specified 
instances, 1626; former laws for 
religious obliged to military ser- 
vice not abolished by the Code, 
App. III, 4, b; immigration of 
religious from Europe and Medi- 
terranean countries to America, 
Appel ile sseh 

Remedies, Penal: admonition, re- 
buke, precept and surveillance are 
preventive measures to avert lapse 
into grave offenses, 2147; one 
in the proximate occasion, or in 
grave suspicion of committing an 
offense is to be admonished by the 
Ordinary, 2148; cleric who causes 
scandal or grave disturbance of 
order, is to be rebuked by his Or- 
dinary, 2149; admonition and 
rebuke may be public or secret, 
2150; if admonition or rebuke 
proves ineffectual, the precept or 
command is to be given, 2151; 
if the case is grave and there is 
danger of relapse, the Ordinary 
shall subject the person to surveil- 
lance, 2152; penances, 2153; the 
Ordinary may impose penances 
together with penal admonitions 
or rebukes, 2154, 


INDEX 


Remission of Penalties: by absolu- 
tion in case of censures and by dis- 
pensation in cases of vindicative 
penalties, 2076; in public cases the 
Ordinary can remit all penalties 
late sententie of the common law, 
with three exceptions, 2077; pardon 
extorted by violence or grave 
fear is invalid, 2078; condition of 
remission, 2079. 

Removable Pastors: status 328; 
pastors belonging to religious com- 
munities are, as individuals, always 
removable, 328. 

Removal of Pastors: bishop may for 
just and grave reason request pas- 
tor to resign the parish, 1997; eva- 
sion of invitation to resign, App. 
III, 75; hearing of pastor, bishop’s 
power to remove, only recourse of 
pastor is to the Holy See, 1998, App. 
ITI, 74; manner of procedure against 
pastor living under suspicious cir- 
cumstances with women, 2008; 
pastor who persists in neglect of 
his pastoral duties is to be re- 
moved by the bishop, after con- 
sultation with the examiners, 2014; 
penalty for illegal refusal to obey 
order of removal from office, bene- 
fice or dignity, 2257. 

Renegade: marriage of a Catholic 
with a renegade, 1044. 

Renunciation of Office: 143; tacit, 
144; acceptance of renunciation, 
145. 

Report: bishop’s report to Rome, 
252, App. III, 18, c; report of 
major superiors to the Holy See, 
387, App. III, 20; what religious 
must make financial report to 
bishop, 417. 

Reputation, Loss of: an impediment 
to ordination, 950. 

Rescission of Acts: actions for the 
rescission of acts, and for the 
restitutio in integrum, 1649-1652. 

Rescript: to whom granted, 25; 
right of a third party to refuse a 





INDEX 


rescript obtained without his 
knowledge, or against his will, 26; 
cessation of rescript, 26; when it 
comes into force, 27; essential 
conditions, 28-29; truth of the 
conditions must be verified, 30-31; 
renewal of refused petition, 32-33; 
error of name, place or matter 
does not invalidate, provided 
there is no doubt in the mind 
of the Ordinary as to identity of 
the person or object, 34-35; con- 
fliction of rescripts, 36; interpreta- 
tion of rescripts, 37; execution of 
rescripts, 38-39; time of presenta- 
tion and execution, 40-42; error 
in execution, tax for execution, 43; 
may be revoked by superior, but 
are valid until subject is notified, 
not revoked by contrary law, 44; 
when they are revoked by vacancy 
of Holy See and diocese, 45. 
Reservation of Sins: definition, 799; 
those who have ordinary power to 
grant faculties can also reserve 
sins to their own tribunal, 799-800; 
general rules, 801-804; reservation 
of false denunciation, 805;  solici- 
tation not reserved, 805; how 
Ordinaries should make reserva- 
tions, 806; reservations in excempt 
religious organizations, 807;  re- 
served cases must be few in num- 
ber, 808; Papal cases not to be 
reserved by inferior authorities, 
809; enforcement of and absolu- 
tion from diocesan cases, 810; 
faculties of canon penitentiary to 
absolve, 811; faculties of pastors 
in paschal season and of mission- 
aries, 812; circumstances under 
which reservations cease, 813-814. 
Residence: of bishop, 249; of pas- 
tor, 341; of assistant priest, 355; 
of religious students, 496; manner 
of procedure against clerics violat- 
ing law of residence, 2002; no 
cleric may leave his diocese for a 
notable length of time without per- 


717 
mission of the Ordinary, 2002; 
punishment by bishop of clerics who 
violate law of residence, 2003-2007; 
penalty for violation of law of 
residence, 2237. 

Resignation: see Renunciation; pen- 
alty for resignation of office, bene- 
fice or dignity into the hands of a 
layman, 2256. 

Retreat: diocesan retreat at least 
once in three years, 96; yearly re- 
treat of religious, 507; time and 
place of retreat before ordination, 
964. 

Retroactive force of laws of the Code: 
10, App. III, 5. 

Revalidation of Marriage; simple 
validation of a marriage invalidated 
by some diriment impediment, 
1176; renewal of consent, 1177— 
1179; revalidation of marriage 
invalidated by defect of form, 
1180; the sanatio in radice, 1181- 
1185. 

Rights: under what conditions ac- 
quired rights remain in force, 4; 
rights and privileges of clerics, 
orders, jurisdiction, benefices and 
pensions, 91; all lawsuits for rights 
must be in ecclesiastical courts, 92; 
right of freedom from military ser- 
vice, 93; clerics may not renounce 
privileges, 94; exclusive right of 
the Church to divide and govern 
all territorial sections, 166; rights 
and privileges of novices, 471; 
right of novice to profession in 
danger of death, 472; rights and 
duties of the married state, 1144; 
wife shares in rights of the hus- 
band, 1145; joint rights and 
duties towards the children, 1146. 

Rites, Congregation of: general du- 
ties, 197. 

Rites: persons of various Rites, 75; 
Latin and Oriental Rites in Bap- 
tism, 650, App. III, 29, a; priest of 
one Rite may give Communion in 
species of another, and faithful 


718 INDEX | 


may receive Holy Communion 
in any Rite, save as Viaticum, 628; 
priest of one Rite may not celebrate 
in another, 718; in urgent neces- 
sity a priest may give Viaticum in 
different Rite, 747-748; Com- 
munion of devotion in different 
Rite, 765; marriage of persons of 
different Rites, ordinarily to be be- 
before the pastor of the groom, 
1116; laws concerning the form of 
marriage of Catholics of Oriental 
Rites, 1126. 

Roman Curia: see Curia. 

Roman Pontiff: election, 123; mod- 
ification of Constitution on elec- 
tion, App. III, 8, a; has supreme 
power of jurisdiction by divine 
right, 171; may resign office, 172; 
has the highest legislative, admin- 
istrative and judicial power in the 
Church, can be brought to trial 
by no one, 1549; all the faithful 
have the right of trial by the Pope, 
1561; he is the supreme judge of 
the entire Catholic world, and tries 
cases, either in person or through 
delegates, 1582. 

Roman Rota: see Rota, Sacred 
Roman. 

Rosary of the B. V. M.: manner of 
recital to gain the indulgences, 
App. III, 37, e. 

Rosaries; blessing of rosaries with 
indulgences by Cardinals, 184; 
by bishops, 256; indulgences not 
lost if rosary is given to another 
person after use by first owner, 
840, App. ITI, 3, e. 

Rota, Sacred Roman: the ordinary 
tribunal constituted by the Holy 
See to receive appeals, selection 
and duties of its auditors, 1584; 
as a court of first and second in- 
stance, 1584; no appeal from de- 
crees of Ordinaries to the Rota 
is granted, 1585, App. III, 63; 
appeal from Rota is to the Signa- 
tura A postolica, 1587. 


Rule: of religious organizations to 
be approved by the S. Congrega- 
tion of Religious, 366. 

Rulers: matrimonial cases of rulers 
to be tried by that court which the 
Supreme Pontiff will delegate in 
each individual case, 1868. 


Sacramentals: lose indulgences upon 
sale, 840; definition of; Holy See 
alone can constitute new sacra- 
mentals, 1187; minister, 1187; 
consecrations can be performed by 
a bishop, or by a priest with a 
Papal indult, 1188; rites to be ob- 
served in the blessing of sacra- 
mentals, invocative and constitutive 
blessings, 1189; sacramentals may 
be administered to non-Catholics; 
reverence due them, 1190, App. 
III, 45, a; distribution of ashes 
on first Sunday in Lent, App. III, 
45, b; blessing of candles for feast 
of St. Blase, App. III, 45, c. See 
Exorcisms. 

Sacraments, Congregation of the: 
general duties, 193. 

Sacraments: instituted by Christ, 
and may not be administered to 
heretics or schismatics, 624; ques- 
tion of administration to non-Cath- 
olics of good faith, 625-626; sac- 
raments that imprint a character, 
rebaptism, 627; rites and cere- 
monies in the administration of the 
sacraments, 628; use of holy oils, 
see Oils, Holy; no payment to be 
exacted for the administration of 
sacraments, 631; their adminis- 
tration to the dying is not for- 
bidden when a place is under a 
local interdict, 2111; penalty for 
administration to forbidden per- 
sons, 2220. 

Sacred Penitentiary: jurisdiction 
limited to the internal forum (sac- 
ramental and non-sacramental), 
absolutions, dispensations,  etc., 
202; decides questions of indul- 





: 


INDEX 


gences, 202; extent of powers same 
as before the Code, 1018. 

Sacred Scripture: seminary professor 
must at least have the baccalau- 
reate from the Biblical Commis- 
sion or the Biblical Institute at 
Rome, 1384; books treating of the 
Sacred Scripture may not be pub- 
lished by either clerics or laymen 
without permission, 1399; transla- 
tion must be published with ex- 
planatory notes and the approval 
of the local Ordinary, 1406; edi- 
tions of original texts by non- 
Catholics, forbidden except to stu- 
dents of theology, 1414, 1416; 
excommunication against unauthor- 
ized publishers of books of Sacred 
Scripture, 2165. 

Sacred Orders, Abuse of: punished 
by irregularity, 941. See Orders. 

Sacrilege and Superstition: guilty 
persons to be punished by the Or- 
dinary, 2178. 

Salaries: bishop must consult con- 
sultors on questions regarding sal- 
aries of pastors, 310. 

Sale: by sale blessed articles lose 
their indulgences, 840; in the sale 
and exchange of sacred objects the 
price must in no way be raised on 
account of their consecration or 
blessing; sale and lease of church 
real estate, 1534. 

Sanatio in Radice: 
riage): 1181-1185. 

Scandal: cleric who gives grave 
scandal is to be deprived of the 
right to wear ecclesiastical garb, 
and prohibited the exercise of 
ecclesiastical ministry, 2141. 

Schismatic Orders: validity of, 881. 

Schismatics: definition, 1346; incur 
irregularity, 934. 

Schools, Catholic: children of Cath- 
olics must be sent to such schools, 
1390; Catholic children should not 
be sent to non-Catholic schools, 
1391; right of the Church to have 


(of the mar- 


719 


schools, 1392; local Ordinaries 
should take care that schools are 
established, 1394; clerics in schools, 
1395; bishop’s right of super- 
vision of schools, 1396; local Or- 
dinaries have right to visit and 
supervise schools, 1397. See Uni- 
versities, Seminary. 

Seal of Confession: obligation, 795; 
what is to be avoided, 796; pen- 
alties for violation, 2225. 

Seasons: closed season for the sol- 
emnization of marriage, 1139; 
sacred seasons, 1271-1275. 

Secrecy: those bound to secrecy in 
ecclesiastical trials, 1602; punish- 
ment of those who violate the se- 
crecy of ecclesiastical trials, 1605. 

Secret, Archives: see Archives. 

Secretariate of State, Papal: duties 
and divisions, 207. 

Secularization: see Egress. 

Seminarians: see Seminary; sem- 
inarians who die in the seminary 
are to be buried by the rector of 
the seminary, who has parochial 
rights over all persons who live in 
the seminary, 1249. 

Seminary: studies subject to Con- 
gregation of Seminaries and Uni- 
versities, 200; bishop bound to 
have seminary for education of 
candidates for priesthood, 912; 
all who aspire to sacred orders are 
bound to live in the seminary at 
least during entire course of the- 
ology, 912; approval of professor 
of Sacred Scripture, 1384; rector 
may not hear confessions of the 
seminarians, 797; right of the 
Church to have seminaries, 1366; 
ordinarily there should be a major 
and a minor seminary in each dio- 
cese, 13867; civil privileges of semi- 
naries in the United States, 1368; all 
priests admonished to foster voca- 
tions to the priesthood, 1369, App. 
III, 7, f; bishop may provide for 
support of seminary by collections, 


720 INDEX 


tax or annexation of benefices to 
the seminary, 1870; who must con- 
tribute to the seminary tax, 1371- 
1372; administration of the sem- 
inary, 1373-1376; confessors in the 
seminary, 1377; use of legacies for 
the education of clerics, 13878; 
qualifications of students for ad- 
mission, 1379; studies, 1380-1384; 
religious exercises, 13885; seminary 
is exempt from parochial jurisdic- 
tion, the rector having parochial 
rights over all residents, 1386; 
duties of rector of, 1387; dismissal 
of unsuitable students, 1388; sem- 
Inaries in charge of religious organi- 
zations, 1389; Papal instruction 
concerning seminaries, App. III, 
(eek 

Seminaries and Universities, Congre- 
gation of: general duties, 200. 

Sentence: see Trials. 

Separation: novices must be sep- 
arated from the professed, 467. 

Separation of Married Persons: 
valid consummated marriage of 
Christians cannot be dissolved by 
human authority, but under cer- 
tain conditions non-consummatedct 
marriages may be dissolved, 1151; 
solemn religious profession dis- 
solves unconsummated marriage, 
and Pope has power to dissolve for 
other reasons, 1152; Pauline priv- 
ilege, see Pauline Privilege; power 
of Church to permit separation, 
1162; reasons for separation, 1163; 
innocent party has right to per- 
petual separation, 1164;  condi- 
tions of separation in case of adul- 
tery, 1165; separation is also jus- 
tified by heresy of one party, 1166; 
by education of a child as a non- 
Catholic, 1167; by criminal and 
disgraceful life, 1168; by danger of 
grave bodily or spiritual harm, 
1169; by cruelty which makes 
common life too difficult, 1170; the 
cause for separation must be sub- 


mitted to local Ordinary, 1171; 
Catholics and civil divorce, 1172~ 
1173; the innocent party has cus- 
tody of the children after separa- 
tion, 1174; separation by mutual 
agreement, especially in the case of 
foreigners in the United States who 
have not as yet brought their fami- 
lies into the country, 1175. 

Sequestration: right of one who has 
a right over a thing to obtain from 
the judge the sequestration of that 
object, 1641-1643. 

Server: Mass should not be said 
without a server, 716; people an- 
swering in place of server, App. III, 
31, d; when server should ring 
small bell, App. III, 31, e. 

Service of the Diocese: canonical 
title for ordination, 921-922. 

Service of the Mission: canonical 
title for ordination, 921-922. 

Services: power of local Ordinary to 
regulate services in parochial 
churches, even those of exempt re- 
ligious, 1210. 

Sick: concessions regarding the Eu- 
charistic fast, 755-758; who may 
administer devotional Communion 
to the sick, 745; who the Viaticum, 
746. 

Signatura, Apostolic: jurisdiction, 
203, App. III, 64; constitution and 
eases tried before it, 1586; it 
passes on petitions to the Supreme 
Pontiff to obtain commitment of 
a case to the Rota, 1586; acts in 
appeals from the Rota, 1587; sen- 
tences, 1588. 

Simony: definition, forbidden by the 
divine law, 613; a bilateral agree- 
ment, 614; temporal price for 
spiritual thing, 615; simony by 
divine and ecclesiastical law, 616; 
divisions, 617; juridical conse- 
quences, 618-621; offerings for 
the administration of the sacra- 
ments, 622; selling of things with 
something spiritual annexed, 623; 





4 
’ 
‘ 
a 
f 


INDEX 721 


penalty for simony in the admin- 
istration or reception of the Sacra- 
ments, 2227; penalty for simony 
in conferring or accepting ecclesias- 
tical offices, benefices and digni- 
ties, 2248. 

Slaves: impeded from ordination, 
947; error as to free state of other 
party invalidates marriage, 1081. 

Societies: of men and women lead- 
ing a community life without vows, 
578-580; not religious organiza- 
tions properly so called, approval 
of, 578; erection and suppression, 
administration and privileges, 579; 
dismissal of members, 580, App. 
III, 27, b-e. 

Societies of Lay Persons: not 
erected by the Church, 582; au- 
thority of bishop, App. III, 28. 

Societies Forbidden to Catholics: 
2188-2190. 

Society of Jesus: simple vows a dir- 
iment impediment to matrimony, 
1060. 

Solicitation: obligation of denounc- 
ing guilty confessor, 805; penal- 
ties for false accusation of con- 
fessor, 2218-2219; penalties for 
solicitation in connection with 
confession, 2224, s« 

Sons of Temperance: forbidden so- 
ciety, 2190. 

Souls in Purgatory: indulgences may 
be gained for, 848. 

Species: forbidden to consecrate one 
species without the other, 719; 
penalty for desecration of the 
Sacred Species, 2170. 

Spendthrifts: status of in court, 
1625. 

Spiritual Relationship: contracted in 
Baptism by minister and sponsor 
with subject only, 666; of spon- 
sors in Confirmation, 691-694; only 
the spiritual relationship contracted 
in Baptism is a diriment impedi- 
ment to marriage, 1075-1077. 

Sponsor: members of religious com- 


munities forbidden to act as spon- 
sors, 486; history of sponsors in 
Baptism; impediment contracted 
by sponsors, 655; sponsors in pri- 
vate Baptism, 656; in doubtful 
Baptism, 657; number of sponsors 
in Baptism, 658; requisites for 
valid sponsorship in Baptism, 659- 
663; requisites for licit sponsorship 
in Baptism, 664-665; spiritual rela- 
tionship contracted by sponsors in 
Baptism, 666; duties of sponsors 
in Baptism, 667; sponsors in 
sacrament of Confirmation, 691- 
694; effect of the change of law, 
App. III, 5, ce. See Confirmation. 

Sponsorship: see Sponsor. 

State: has no jurisdiction as far as 
the validity or licitness of marriage 
is concerned, 1866; power of state 
with regard to mere civil conse- 
quences of marriage, 1867. 

State, Secretariate of: see Secre- 
tariate of State, Papal. 

State of Grace: necessary to gain in- 
dulgence, 842. 

Stations of the Cross: Cardinals may 
erect anywhere, 184; faculty of 
bishops, 256. 

Sterility: not authoritatively defined 
by the Church, 1049. 

Stipends, Mass: subject to the Con- 
gregation of the Council, 194; 
priest may receive only one when 
he celebrates more than once a day, 
723; remuneration for second or 
third Mass on All Souls’, App. 
III, 3, c; laws concerning stipends, 
724; various kinds, 725; abuses to 
be avoided, manner of application, 
726, 728, App. III, 32, e-d; obliga- 
tion of saying the Mass when the 
stipend has been lost, 727; interpre- 
tation of large stipend, 728; right of 
local Ordinary to fix amounf of sti- 
pend, 729; obligations arising from 
acceptance of stipend, 730; time of 
fulfillment of obligation, 731; num- 
ber of stipends one may receive, 


722 


732; transfer to other priests, 
733-736; transfer to priests of 
other dioceses, App. III, 3, d; 
transfer to priests of Oriental 
Rites, 736; entire stipend must be 
transmitted if it is manual, but not 
if it is ad instar manualium, 737; 
definition of stipends ad instar 
manualium (or foundation Masses) 
and laws governing such, 738; sti- 
pends may not be held over one 
year, 739; duty of local Ordinary 
to supervise fulfillment of obliga- 
tions, 740; record of Mass sti- 
pends, 741-742; larger stipend may 
not be exacted on account of a 
privileged altar, 834; Mass sti- 
pends, and the obligation to say 
Mass for a certain intention are 
not subject to prescription, 1499. 
Stipendia Manualia are personal 
property of priest who says the 
Masses, 2122; interpretation of 
special concessions in regard to 
stipends, App. III, 32, a; paying 
board by saying of Masses for the 
intention of the pastor, App. III, 
32, b; penalties for violation against 
laws governing stipends, 2177. 
Stole Fees; are the property of the 
pastor, 339; in some dioceses in the 
United States these are the prop- 
erty of the parish, 2122. 


€trangers: binding force of laws on 


strangers, 12; strangers in the 
city of Rome and their rights in 
regard to trial for offenses, 1554. 
See Peregrini. 

Studies: after ordination, 98; in 
clerical religious organizations, 496- 
501; houses of studies and mem- 
bers of, 496; master of studies, 
497; courses of philosophy and 
theology, 498, 1881; examinations 
of priests, 499; conferences, 500; 
attendance of clerics at secular uni- 
versities, App. III, 7, g; religious 
in secular universities, 501; neces- 
sary studies before reception of 


INDEX 


orders, theological studies may 
not be made privately, 918; vari- 
ous branches of studies in semi- 
naries, 1380; qualifications of pro- 
fessors, 1882; bishop with the 
seminary board to determine the 
plan of studies in the seminary, 
1383; four years of theology, 1384. 

Suffrage: right of, 124-128. 

Suffrages: right of novices to suf- 
frages of professed, 471, App. III, 
JAN ip 

Suicide: those who deliberately 
attempt suicide incur irregularity, 
939; penalties for attempted self- 
destruction, 2205. 

Superiores Majores: definition, 365. 

Superiors, Religious: subject to the 
Roman Pontiff, 377; jurisdiction, 
379-382; term of office, 382; elec- 
tion, 383-385; obligations, 386- 
387; visitation, 388-390; admin- 
istration of Last Sacraments to 
subjects, 391; council of the su- 
perior, 393-397; superior may not 
hear confessions of subjects, 399; 
forbidden to induce subjects to 
make manifestation of conscience, 
409; investments of money by 
superior, 413; limits of expendi- 
tures of superior, 414-416; ac- 
count of administration to local 
Ordinary, 417; faculties for ex- 
penditures in the United States, 
418-419; permission of superior 
necessary for contracts of subjects, 
420; contracting of debts, 421; 
order liable for damages caused by 
superior, 422-423; donations of 
superior, 424-425; right to receive 
candidates, 426; reception of can- 
didates, 440; superior issues testi- 
monials, 446; invests dowries, 450; 
dismisses novices, 477; may pro- 
long time of temporary vows, 481; 
may permit renewal of temporary 
vows, 484; approves studies, 496; 
bound by common life, 503; his 
obligations toward subjects, 507; 








et ee a a ~ 


rT” Se a ae — ~ 


——. +. aS, 


INDEX 


must fix limits of enclosure, 509; 
must supervise exercise of sacred 
ministry and divine worship by his 
subjects, 522; is responsible for 
celebration of Divine Office, 525; 
governs correspondence of sub- 
jects, 527; power of major superior 
to dismiss subjects from religious 
organization, 571; superiors who 
have power to grant faculties may 
reserve cases to their tribunal, 
800; power to grant faculties for 
preaching, 1855; superiors who 
have coercive power, 2055-2056. 

Superstition and Sacrilege: guilty 
persons to be punished by the Or- 
dinary, 2178. 

Supplied Jurisdiction: 161-162. 

Suppression: of religious organiza- 
tions, provinces and houses, 371; 
permission of the Holy See or of 
the local Ordinary required in 
such cases, 376; the penal sup- 
pression or transfer of an episcopal 
see is reserved to the Roman Pon- 
tiff; suppression or transfer of a 
parish is reserved to the Ordinary 
after consultation with the chapter 
(diocesan consultors), 2133. 

Supreme Pontiff: see Roman Pontiff. 

Surveillance: see Remedies, Penal. 

Suspension: definition, can be in- 
flicted only on the clergy, 2120; 
various kinds, 2121; suspension 
from benefice and from office; what 
forbidden, 2122-2125; suspension 
of a community or college, 2126. 
For suspension ex informata con- 
scientia, see Ex Informata Con- 
scientia, Suspension. 

Synod, Diocesan: time of, 262; _his- 
tory of, 263; persons to be called, 
264; subjects to be — discussed 
under supreme direction of bishop, 
265. 

Synodal Examiners: duties, 284; 
duties are compatible with those 
of religious life, 540. See Exam- 
iners, Synodal, 284. 


723 


Synodal Judges: to be appointed in 
every diocese (but must not ex- 
ceed twelve in number) and to act 
with delegated power, 1565. 


Tabernacle: for the reservation of 
the Blessed Sacrament, must be 
immovable and placed in the mid- 
dle of the altar, custody of the 
key, 1297. 

Tablets, Memorial: of deceased in 
churches and crypts, App. III, 
46, b. 

Tacit Jurisdiction: in the Sacrament 
of Penance, 782. 

Tax: no tax may be demanded by 
the bishop for examination of Sis- 
ters before reception and_profes- 
sion, App. III, 21, d; tax covering 
expenses of dispensation in mar- 
riages and funeral offerings to be 
fixed by the local Ordinary, 631; 
seminary tax may be levied by the 
bishop, 13870; who must contrib- 
ute to the seminary tax, 1371-1372; 
local Ordinary has a right to an 
annual tax or cathedraticum, 1494, 
App. ITI, 58, a; for special needs 
the bishop may impose extraordin- 
ary taxes, 1495; tax levied in the 
conferring of a benefice, App. III, 
56, d; what taxes to be fixed by 
Provincial Council, 1496, App. III, 
58, b; penalty for refusal of legiti- 
mate tax, 2204; penalty for illegal 
exaction of tax, 2264. 

Teachers: must promote veneration 
for the Blessed Eucharist, 1301. 
Teaching Authority (of the Church): 
nature and history, 1343; power of 
definition, 1344; in condemnation 
of heresy, 1345; bishops as teachers 

and leaders of the faithful, 1347. 

Telephone and Telegraph: use in ap- 
plying for dispensations forbidden, 
1011, App. ITI, 41, a. 

Temporalities: of the Apostolic See 
administered by the Camera Apos- 
tolica, 206. 


724 


Tempus Continuum: an interval | 


of time which suffers no interrup- 
tion, 24. 

Tempus Utile: aninterval of time 
which begins only after knowledge 
of a fact, 24. 

Tertiaries: see Third Orders. 

Testimonials: necessary for recep- 
tion into a religious organization, 
441-445; manner of giving, 446— 
447; refusal of testimonials by 
head of school, App. III, 21, ¢; 
testimonials necessary for candi- 
dates to ordination, 958; special 
rules about testimonials from vari- 
ous dioceses wherein candidate had 
temporary residence, 959;  testi- 
moniais to be issued by religious 
superiors, 960. 

Theatrical Performances: attendance 
forbidden clerics, 111. 

Theology: see Studies. 

Theosophism: Catholics forbidden 
to join theosophistic societies or 
attend meetings, App. III, 78, b. 

Third Orders: one may not belong to 
several, 589; definition, 596; no 
new Third Order may be erected; 
permission of bishop necessary for 
erection of sodality, 597; religious 
may not be received into Third 
Order, 598; rules governing trans- 
fer of members, insignia and habit, 
599; privileges with regard tea 
Papal Blessing and General Absos 
lution, 832. 

Time: manner of reckoning, 22-24; 
for the observance of ecclesiastical 
fast and abstinence and the recital 
of Divine Office, any recognized 
way of estimating time may be 
followed (daylight saving, etc.) 
23; computation of day, month 
and year, 24; computation of time 
of novitiate, 456, App. III, 21, e; 
time for the celebration of Mass, 
720; time for visits to church or 
oratory on days of indulgence, 839; 
time and place of ordination, 969; 


INDEX 


marriage may be contracted at any 
time of the year; solemnity of 
marriage forbidden during closed 
seasons, but diocesan law cannot 
forbid marriage at any season, al- 
though bishop has right to forbid 
marriage in the evening, 1139. 

Tithes: where there is a special law, 
the faithful are bound to pay them, 
1492. 

Title: of church, 1207; transference 
of title to another church, 1224; 
title of altar, 1233. 

Title to a Benefice: pastor may hold 
title to one parish only, 336. 

Title of Ordination: canonical title 
for secular clergy, 921-922; for 
religious, 923; conditions on which 
benefice which was title of ordina- 
tion may be renounced, 1479. 

Tonsure: reception of first tonsure as 
initiation into the ranks of the 
clergy, 84; by tonsure a cleric is 
incardinated into a diocese, 87, 
890, 893; history of tonsure, 879; 
tonsure to be conferred only on 
those who intend to advance to the 
priesthood, 913. 

Toties Quoties: See Indulgences. 

Transfer of Pastors: procedure in the 
transfer of pastors, power of Or- 
dinary to transfer, 1999; if pastor 
refuses to accept transfer, Ordinary 
must consult two parochial con- 
sultors on reasons of transfer and 
conditions of the two parishes, 
2000; if, after consultation, Or- 
dinary still wishes the transfer, he 
shall repeat the exhortation, and 
pastor is bound to accept, subject 
only to recourse to the Holy See 
2001. 

Transfer from an Office: 148. 

Transition: from one religious organ- 
ization to another, 546-550, App. 
III, 25; regulations concerning 
permission to changes, 546; habit 
of new novitiate, 547; novitiate 
and profession, 548; transition 


INDEX 725 


from ‘monastery to monastery, 
rights and obligations, temporal 
goods, 549; solemnity of vows ex- 
tinguished, 550. 


Translations: authorized translations 


must be used to gain indulgences 
attached to prayers, 853; transla~ 
tions of forbidden books, con- 
demned by the Holy See, also for- 
bidden, 1411. 


Trials, Canonical: for dismissal of 


religious, 571-575; who must be 
given benefit of trial, 571; pre- 
requisites of, 572-573; procedure, 
574; trial of a religious summarily 
dismissed, 575; ordinary trials, 
1545; definition of ecclesiastical, 
and subject matter of canonical 
trials, 1546; cases subject to eccle- 
siastical trial, 1547; laymen can- 
not be appointed by Ordinary as 
judges in ecclesiastical trials, App. 
III, 62; courts which are bound to 
follow procedural law of the Code, 
1548; of the competent forum, 
Roman Pontiff cannot be brought 
to trial by any one, 1549; cases re- 
served to the Holy See, 1550; com- 
petency of the judge and court, 
1551; necessary forum, 1552; or- 
dinary forum, jurisdiction of local 
Ordinary, 1553; trial of a stranger 
in Rome, 1554; forum of a vagus 
and of a religious, 1555; location 
of the thing may be the place of 
trial, 1556; trial before local 
Ordinary of place where contract 
was made, provided party to be 
sued is staying in the place of con- 
tract, 1557, App. III, 61, b; by an 
offense one becomes subject to the 
forum of the place, 1558; complica- 
tionof fora, 1559; when two or more 
judges are equally competent, he 
has the right to try the case who 
first issued the summons, 1560; 
various stages and species of tri- 
bunals, all the faithful have the 
right of trial before the Holy See, 


right of the Supreme Pontiff to try 
any case, 1561; tribunals of vari- 
ous cases, judge cannot try same 
case in another instance, appeals are 
to be addressed to a higher court, 
1562; the ordinary tribunal in the 
first instance, 1563; the Judge, if 
question is of rights of the bishop, 
it is to be tried by a board of three 
judges of the diocese; bishop can- 
not judge case where he is person- 
ally interested, 1563; the officialis 
(or diocesan judge) see Officialis; 
synodal judges, 1565; trial by one 
judge; what cases must be tried 
by several judges, 1566-1568; 
what cases the bishop may preside 
over, 1569; competent court for 
religious, 1570-1571; auditors and 
referees, 1572-1573; at every trial 
there must be a notary who acts as 
secretary, the acts of the trial being 
invalid unless subscribed by him, 
1574; offices of promotor justitie 
and defensor vinculi, 1575-1577 
(see Promotor Justiticw and De- 
fensor Vinculi); couriers (mes- 
sengers) and apparitors (executors 
of the sentence and decrees of the 
judge), appointment and duties of, 
1578; Ordinary Tribunal in the 
Second Instance, 1579; in exempt 
religious organizations appeal from 
the Provincial Superior is to the 
supreme head, 1580; Constitution 
of the Court of Appeal, 1581; Or- 
dinary Tribunals of the Apostolic 
See, 1582-1588; the Roman Pon- 
tiff is the supreme judge for the 
entire Catholic world, 1582; Sa- 
cred Roman Rota, 1583-1587 (see 
Rota, Sacred Roman); the Sig- 
natura Apostolica, 1586-1588 (see 
Signatura, Apostolic); Delegated 
Tribunal, appointment and office 
of delegated judges, 1589; rules to 
be observed by the courts, the 
competent judge may not refuse 
his services to any one who legiti- 


726 


mately applies to him, 1590; ques- 
tion of competency of judge, 1591- 
1592; judge should not accept a 
case in which he might be inter- 
ested, 1593; objection to a judge as 
suspected, 1594; exception of sus- 
picion taken against the Ordinary 
trying the case, 1595; when the 
judge is declared suspected, 1596; 
in private affairs the judge may 
interfere only at request of either 
party, in public, however, the 
judge may proceed ex officio, 1597; 
plea and defense, 1598; procedure 
should be speeded, without preju- 
dice, however, to justice, 1599; 
those who should take the oath, 
1600; nature of the oath, 1601; 
those bound to secrecy, 1602; 
judges and other officials may not 
accept presents on the occasion of 
the trial, 1603; delinquencies of 
judges and _ procedure against, 
1604-1605; judge may force plain- 
tiff to give security for observance 
of the ecclesiastical sentence, 1606; 
order of procedure, all cases should, 
as a rule, be tried in order of pres- 
entation, 1607; exceptions must 
first be proposed and ruled on, 
1608-1609; presentation of counter- 
suit and counter-charge, 1610; 
questions about security to cover 
cost of trial, and similar points are 
usually to be settled before the con- 
testatio litis, 1611; issues arising 
from submission of principal ques- 
tion, 1612; terms of postponement 
and fatalia legis, 16138; place and 
time for court sessions, 1614-1616; 
persons to be admitted to court 
sessions, 1617-1618; the manner 
of drawing up and preserving judi- 
cial acts, 1619-1621; parties to a 
trial, plaintiff and defendant, 1622- 
1628; proxies in litigations and ad- 
vocates, 1629-1636; actions and 
exceptions, 1637-1668; sequestra- 
tion of goods and injunction of the 


INDEX 


exercise of rights, 1641-1643; ac- 
tions to halt new enterprises and 
obtain security against danger to 
one’s property, 1644-1645; actions 
arising from nullity of acts, 1646— 
1648; actions for the rescission of 
acts and the restitutio in integrum, 
1649-1652; actions and counter- 
actions, 1653-1655; possessory ac- 
tions or remedies, 1656-1662; ex- 
tinguishment of actions, 1663- 
1668; introduction of a case, 
1669-1683; the bill of complaint, 
1669-1672; the summons and noti- 
fications of judicial acts, 1673- 
1683; contestatio litis (joining of 
issues), 1684-1689; the instance 
of a suit, 1690-1695; interruption 
of a lawsuit, 1691-1692; abate- 
ment of a lawsuit, 1693-1694; 
renunciation of the instance and of 
procedural acts, 1695; interroga- 
tion of the parties in court, 1696— 
1700; proofs, 1701-1763; the con- 
fession of the parties, 1703-1705; 


witnesses and testimony, 1706- - 


1707; persons who can be wit- 
nesses, 1708-1709; introduction, 
exclusion and number of witnesses, 
1710-1715; the oath of witnesses, 
1716-1718; examination of wit- 
nesses, 1719-1725; publication and 
rejection of the testimony of wit- 
nesses, 1726-1728; compensation 
of witnesses, 1729; appraisal of 
depositions of witnesses, 1730- 
1732; experts, 1733-1741; judicial 
access and inspection, 1742-1748; 
documentary proofs, 1744-1753; 
nature and weight of documents, 
1744-1748; exhibition of docu- 
ments and the action to force their 
exhibition, 1749-1753; presump- 
tions, 1754-1756; oath of the par- 
ties, 1757-1763; of incidental 
cases, 1764-1782; contempt of 
court, 1768-1776; contempt of 
court by plaintiff, 1774-1775; in- 
tervention of a third party in a 


a 


INDEX 727 


case, 1777; attempts prejudicial 
to the object in controversy pend- 
ing the litigation, 1778-1782; pub- 
lication of the process, closing of 
the case, and pleading, 1783-1790; 
final pleading, 1786-1790; the 
sentence, 1791-1799; legal reme- 
dies against the sentence, 1800- 
1819; the appeal, 1801-1811; com- 
plaint of nullity against the sen- 
tence, 1812-1816; opposition of a 
third party, 1817-1819; the res 
judicata, 1820-1822, App. III, 68; 
reinstatement in former position, 
1823-1825, App. III, 69; cost of 
trials, 1826-1830; gratuitous legal 
service and reduction of° judicial 
expenditures, 1831-1832; execu- 
tion of the sentence, 1833-1840; 
ways of avoiding civil trials, 1841- 
1848; of compromise, 1841-1844; 
compromise by arbitration, 1845- 
1848; of criminal trials, 1849- 
1865; actions of accusation and 
denunciation, 1850-1852; the in- 
vestigation, 1853-1857; the rebuke 
of the offender, 1858-1863; the 
criminal prosecution and the sum- 
mons of the offender, 1864-1865; 
matrimonial cases, 1866-1900; the 
competent forum, 1866-1872; con- 
stitution of the tribunal, 1873- 
1875; duties and rights of the 
defensor vinculi, 1874-1875; right 
to attack marriage and _ petition 
for dispensation of unconsummated 
marriage, 1876-1879; of proofs, 
1880-1882; bodily inspection, 
1883-1886; introduction of expert 
testimony in cases of alleged insan- 
ity, 1887; publication of the 
process; closing of the evidence 
and sentence, 1888-1890, App. 
III, 67; defensor vinculi makes 
final plea, 1889; appeals, 1891- 
1894; of cases exempted from the 
formalities of an ordinary trial, 
1895-1898; appeal from declara- 
tion of nullity, 1899-1900; cases 


against Sacred Ordination, in which 
the obligations contracted by or 
the validity of sacred ordination are 
attacked, 1901-1905; in trials for 
removal or transfer of pastors, and 
in proceedings against clerics who 
break the law of residence or are 
guilty of concubinage or against 
pastors neglectful of their pastoral 
duties, summary proceedings are 
to be instituted, 1985; from deeree 
of punishment for cases mentioned 
in 1985 only appeal is to the Apos- 
tolic See; appeal does not suspend 
sentence of the bishop, 1986. 


Tribunals of the Roman Curia: 202- 


203. 


Trustees, Board of: duty to care for 


proper administration of church 
property, 1222; lay trustees have 
no right of patronage where a 
church is built, endowed, and main- 
tained by voluntary offerings of 
the faithful, 1454; office, qualifica- 
tions and appointment of trustees 
who are to assist the pastor in the 
administration of the parish are 
to be determined by the statutes of 
the diocese, 1514. 


Unbaptized; unbaptized infants of 


Catholics may not receive Christian 
burial, 1211; unbaptized persons 
may not receive ecclesiastical bur- 
ial, except catechumens, 1267. 


Unction, Extreme: how it is admin- 


istered, 857; form or words, 858; 
administration reserved to the 
pastor, 859; obligation of pastor 
to administer, 860; subject must 
be of age of discretion and be in 
danger of death through illness or 
old age, 861; degree of danger, 
862; may be administered only 
once in same sickness, 863; in 
doubt whether person is fit sub- 
ject, it may be given conditionally, 
864; cannot be given to those who 


728 INDEX 


stubbornly persevere in mortal 
sin; and, where this is doubtful, 
must be given conditionally, 865; 
administration to unconscious per- 
sons, 866; obligation to receive, 
867; rites and ceremonies, blessing 
and custody of the Holy Oils, 868; 
anointing of the five senses united 
with the words, 869; use of instru- 
ment, 870. 

United States: states which hold 
legal adoption an impediment to 
marriage, 1038; civil law on assist- 
ance of priests at marriage, 1109; 
not customary for priest to accom- 
pany body to cemetery, 1260; 
days of fast and abstinence in U. S., 
1278-1279; freedom of the Church 
to erect and maintain seminaries, 
1368; question of benefices in the 
U.S., 1423; to have legal standing 
in American civil law, a benefice 
must be incorporated, 1431; right 
of patronage is not admitted in 
U.S., 1454; civil laws of prescrip- 
tion apply also to the Church in 
the U.S., 1505; pastors in U.S. are 
often assisted in temporal adminis- 
tration by two lay trustees, their 
number and appointment being left 
however to the statutes of each 
diocese, 1514; faculties of bishops 
in U.S. to reduce Mass obligations 
arising from pious foundations, 
1544; in some dioceses of U.S. the 
stole fees are the property of the 
parish, 2122. 

Universities: Congregation of Sem- 
inaries and Universities, 200; clerics 
studying in secular universities, 501, 
App. III, 7, g; erection of Catholic 
universities reserved to the Holy 
See, faculties to issue degrees, rights 
of doctors with such degrees, 1393; 
the Catholic University at Wash- 
ington, 1393; erection and support 
of universities, 1394; clerics and 
priests to be sent to Catholic uni- 
versities, 1395. 


Utensils Sacred: see Furnishings, Sa- 
cred. 


Vacancy of an Episcopal See: 312- 
314; acts of vicar-general before 
notice of, are valid, 312; vacancy 
caused by transfer of bishop, 312; 
during first eight days after vacancy 
Cathedral Chapter (or consultors) 
rule, unless otherwise provided by 
the Holy See, but must within those 
days elect vicar-capitular or dio- 
cesan administrator, 313, 314; 
vacancy of an abbacy or prelature 
nullius, 314. 

Vacancy of a Parish: see Adminis- 
trator, Parochial. 

Vacation: of pastors, 342; of bishops, 
249. 

Vagi: definition, 12; bound by gen- 
eral and particular laws of places, 
12, 68; save in the case of neces- 
sity, pastor may not marry vagi 
without referring the matter to 
the local Ordinary, 1002, 1113; 
are subject to the pastor in whose 
parish they actually stay, 1112; 
have their proper forum, for eccle- 
siastical trial, in the place where 
they actually stay, 1555. 

Validation of Marriage; 1176-1185; 
not affected by abrogation of 
former impediments, App. III, 5, ec. 

—of Invalid Religious Profession: 
495. 

Venerable: title does not imply per- 
mission to honor with public cult, 
1968. 

Veneration: of the saints, sacred 
images and relics, 1304-1312. 

Verbal Injury: penalties for those 
causing such injury to clerics, 2199. 

Vessels, Sacred: see Furnishings, 
Sacred. 

Vestments: of the priest, bishop and 
Cardinal at Mass, 714, 

Viaticum: administration to relig- 
ious, 391: administration in the 
parish reserved to the pastor, 746, 


INDEX 729 


Vicar-Apostolic: 223-232; nomina- 
tion and appointment, rights and 
faculties, 223; has no right to be 
mentioned in Canon of Mass, App. 
IiI, 12; must make report to 
Holy See on state of mission, 225, 
App. III, 18, e; clerics subject 
to Vicar Apostolic, 224; visit ad 
limina, 225; residence, 226; 
archives, 227; care of native 
clergy, 228; Missa pro populo, 229; 
may not g=a=4+ permission to clerics 
to leave territory, 229; honors and 
privileges, 230; pro-vicar and ad- 
ministrator, 231; succession to 
authority, 232. 

Vicar-Capitular: 314-320. See Ad- 
ministrator, Diocesan. 

Vicar-Forane: see Dean, 321-324. 

Vicar-General: faculties, 49; ap- 
pointment, 267; history of office, 
267-269; qualifications, 270; pow- 
ers, 271; when he needs a man- 
date, 272; concerning concessions 
of the bishop, and vice versa, 
273; right of precedence, 273, 
App. III, 14; cessation of juris- 
diction, 274; appeal from sen- 
tence! of vicar-general, 275 vicar- 
general of abbots and prelates nul- 
lius, 276; religious may not hold 
office of vicar-general save in dio- 
ceses entrusted to Order, 540; 
vicar-general may not erect asso- 
ciations by general mandate, 584; 
cannot confer benefices without a 
special mandate from his Ordinary, 
1445; has no power to inflict pen- 
alties without special mandate; if 
he is at the same time officialis or 
judge, of the diocesan curia, vicar- 
general has power to try cases and 
inflict penalties of the law, 2055. 

Vicar Parochial: elected by Cathe- 
dral Chapter to take care of the 
cathedral parish, 293; in parishes 
united to a religious house, nomina- 
tion and office, 349; administra- 
tor (vicarius economus), 350; sub- 


stitute, 343, App. III, 17, a-b; vica- 
rius adjutor, 352. 

Vicariates: divided into parishes, 
167. 

Vigil: when feasts fall on Monday, the 
fast of anticipated vigil is abolished, 
1278. 

Vindicative Penalties: definition, 
2051. See Penalties, Ecclesiastical. 

Virginity, Vow of: impediment to 
marriage, 1031; see Vow. 

Visitation; bishop’s visitation of dio- 
cese, 253; manner of this visitation, 
254; visitation of religious houses 
by major superiors, 388; by local 
Ordinary, 389; rights and duties 
of visitor, 390; penalty for inter- 
ference of religious superiors with 

. the visitation, 2269. 

Visit: of priests from Europe and 
Mediterranean countries to Amer- 
ica and the Philippine Islands, 
App. LE 72h. 

Visiting, of Nuns Subject to Enclos- 
ure: 518. 

Vocations: pastors and other priests 
should foster vocations to the 
priesthood, 1369. 

Voluntary Jurisdiction: 155-157. 

Voluntary Offerings: see Free-Will 
Offerings. 

Votive Offerings; sale or disposal, 
App. III, 59, a-b. 

Vow: vow to receive Sacred Orders 
an impediment to marriage, 1034; 
no simple vow invalidates marriage 
unless the Holy See has ruled other- 
wise for some persons, 1035; vow 
to embrace the religious life, an 
impediment to marriage, 1035; 
definition of vow, 1326; various 
kinds, 1327; reserved vows, 1328; 
extent of the obligation of a vow, 
1329; various ways in which the 
obligation ceases, 1330; annul- 
ment of a vow, 1331-1332; dis- 
pensation from private vows, 1333- 
1334; commutation, 1335; vow 
made before profession in a reli- 


730 INDEX 


gious community, 1336; effect of 
the reduction of solemn vows of 
nuns to simple vows, App. III, 
18, c-e. 

Vows: of religious life to be held in 
honor by all, 364; conditions for 
validity of religious vows, 478-480; 
temporary vows must precede per- 
petual and solemn in all Orders and 
congregations, 481; superior may 
prolong period of temporary vows, 
but not for more than three years, 
481; at expiration of temporary 
vows, religious may return to the 
world, be dismissed, or make either 
perpetual or solemn profession, 
vote of chapter or council decisive, 
for first temporary vows, con- 
sultive for perpetual, 482. See 
Profession, Religious. 


Wage: all who employ workingmen 
must pay them a just and decent 
wage, 1517. 

Wife: domicile of, 70; mutual rights 
in matrimony, 1144-1145. See 
Matrimony. 

Will, Last: of members of religious 
organizations, 492; last wills in 
favor of religion or charity, 1506- 
1510. 

Wine: laws concerning the wine of 
the Mass, 717-718. 


Women: living in the rectory, 102 : 
deportment and modesty of women 
in church, 1289; in church choir, 
1291; cleric who, in any manner 
associates with a woman of sus- 
picious character is to be admon- 
ished by his Ordinary, 2008. 

Works, Good; as a condition for 
gaining indulgences, 850; confes- 
sor may commute good works, 
855. 

Worship, Divine: various kinds of 
public and private cult, 1282; 
printing and publishing of litur- 
gical books reserved to the Holy See, 
1283; Catholics forbidden to tale 
active part in non-Catholic wor- 
ship, 1284-1285; prayer and re- 
ligious exercises held in any church 
or oratory subject to bishop’s ap- 
proval, 1286; divine worship goy- 
erned solely by the authority of 
the Church, 1287; duty of local 
Ordinaries to regulate public and 
private worship, 1288; how men 
and women shall assist at divine 
worship, 1289; of special places in 
church, 1290. 


Year: canonical definition, 24; year 
of novitiate, 24. 


Ee 


, , me ra Bie GL 
re Ky Hy IL od 
Le 7 1) 
( 5 Y, 
'y her itp ui erick 
Pan, Vie. x" : 
| 774 OPM ot Mh 


«ev 


He! i 


kd 4 ) 
CW yo: y 
i a 


f Oe yentt ee Can Be ie RvR) ie hie , 
aes im S,, a4 a “i vi, 2 yi, ey 7 i abs ae ay nF ty if Die 


any we i ‘ 
von bia 





Oe Wanye & 





et 
wy 








i, 

Se 

yh 
a) 


¥ 


? ( 
want j 
‘ r » 





MAS 


J . 


a} 
ST? 


‘ 


ey 





——- 
Jee SS 


a 


= 


en ee 
0 he 


oe ae 


4) 


Tov BPs A: < 4) 
ov Pr _ 
becines, 
| Mast re 
ih eet ra in 
Vs RGR y 





“a, 





ceMige ene re 
patie’ Vere ne 
| ty ne A, rv 


‘ betel, 


he) ay 


er 


i, ty 
Looe 
7. 7 








a) 

aay 
in he 
ih &%« 


ih te 


4 
m* 


on si 


Py u Nf 


ee pet . / 


pee 


aly 





rw 
- 


pear psty 
wets. 3 


~ 


ui 
oy 


veh 
et 








< 
; Wy 
f v4 
eh i) 
‘ ‘ Fe, 
TRE A om 
Ye nad ‘ 
+) 4 ") ' 
f 
‘ 
7 etyia 3 















i oP eT ny 7 
. are as ree 
' ty ive SD AAA Beg ir oA 
VA ied Bid Puy til ULE 


' 
all) 
Y 
ane 
r 


1 er wine 


-_ ui 
i Ye 


, wt aa 
ne ‘ 
4 ea \ 


ate ¥ i Mh ih 
¥ oF 
i 
- u 


fu i ad a YY, 


aes 
“iy ; ait 


, 
ia 7 


4 ( aw ' 





‘Til i I ii | ' 


1 1012 


DATE DL Eames 





























AF) bs 
ADL 


mi Ny’ 
ae 3 i 
cy 
'. 
ey Ms meh : 
a 7 ~ 
aye a 


v i 


j . a 
ipo ») mb, 
eee ah ) 





AS 


AS ie 


het A ts Soe 


me 


Pay" 


sera antla, 
2! 
~_— 





SRS 
Lk seek he abel 


— 


